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Canadian  Institut*  for  Historical  Microreproductiont  /  Institut  Canadian  da  microraproductiona  historiquas 


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conformity  avac  les  conditions  du  contrat  de 
filmage. 

Lee  exemplaires  originaux  dont  la  couvarture  an 
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empreinte. 

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darniira  image  de  cheque  microfiche,  salon  la 
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symbols  ▼  signifis  "FIN". 


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entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bonom.  as  many  frames  as 
required.  The  following  diegrams  illustrate  the 
method: 


Les  cartes,  plenches,  tableaux,  etc..  peuvant  etre 
filmis  A  des  taux  de  reduction  diffSrents. 
Lorsqus  Is  document  est  trop  grand  pour  iue 
raproduit  en  un  seul  cliche,  il  est  filmi  A  partir 
de  Tangle  supirieur  gauche,  da  gauche  i  droits. 
at  de  haut  en  bas,  sn  prenant  le  nombre 
d'images  nicsssaira.  Las  diagrammes  suivants 
illustrent  la  mSthode. 


1  2  3 


1 

2 

3 

4 

5 

6 

MICTOCOW   RESOIUTION   TIST  CHART 

ANSI  and  ISO  TEST  CHART  No    2i 


»^  I—     12.2 


^     ^PPUED  IM^GE     Inc 


Carnegie  Endowment  for  International  Peace 

DIVISION  OK  INTKKNATIONAL  LAW 


INSTRUCTIONS  TO  THE  AMERICAN 

DELEGATES  TO  THE  HAGUE  PEACE  CONFERENCES 

AND  THEIR  OFFICIAL  REPORTS 


EDITKD  WITH  AN  INTKODL'CTION 

BV 

JAMES  BROWN  SCOTT 

DIRECTOR 


NKW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN      BRANCH:     ;i">     WEST     3l'ni>     STREET 

London,   Toronto,    Melbourne   and    Bomlmy 

HUMPHREY   MILFORD 

1916 


COI'YRinilT    l»l« 

KV    TIIK. 

CARNKCilK  ENDOWMKNT  TOR  INTERNATIONAL  I'EACK 
WASHINHTON,  U    C. 


UVBON    S.    AluMl.   PmHTKH 
WAIIIINOTON,   0.    C. 


INTRODUCTION 

There  comes  a  time  when  people  must  stand  up  to  he  counted,  or, 
more  elegantly  expressed,  when  they  must  confess  their  faith  in  public, 
and  it  would  seem  that  the  present  is  a  time  when  those  who  believe 
in  the  wisdom  and  in  the  eflkacy  of  the  Hague  Conventions  should 
give  public  exprcsrion  to  their  belief. 

The  United  States  welcomed  the  call  to  a  conference  issued  by 
Nicholas  II,  the  present  Czar  of  All  the  Russias,  and  the  American 
delegates  to  the  First  Hague  Conference,  under  the  leadership  of  the 
Honorable  Andrew  D.  White,  were  not  the  least  influential  in  nego- 
tiating the  Convention  for  the  pacific  settlement  of  international  dis- 
putes, at  a  time  when  it  seemed  likely  to  fail,  and  which,  when  nego- 
tiated, justified  the  call  of  the  Conference. 

Secretary  of  State  Hay's  instructions  to  the  American  delegates, 
contained  a  brief  history  of  the  peace  movement  in  America  and  posi- 
tive directions  to  secure  the  establishment  of  a  Permanent  Court  of 
Arbitration. 

The  United  States  not  merely  welcomed  the  call  to  the  Second  Hague 
Conference  but  grew  weary  of  waiting  for  the  call  which  did  not  come. 
It  therefore  sounded  the  Governments,  twenty-six  in  number,  repre- 
sented at  the  First  Conference  as  to  their  willingness  to  attend  a  second 
conference,  suggested  the  broad  outlines  of  a  program,  and  expressed 
"the  President's  desire  and  hope  that  the  undying  memories  which 
cling  about  The  Hague  as  the  cradle  of  the  beneficent  work  which  had 
its  beginning  in  1899  may  be  strengthened  by  holding  a  second  peace 
conference  in  that  historical  city."  The  replies  to  the  circular  instruc- 
tion, dated  October  21,  1904,  were  uniformly  favorable  and.  the  war 
between  Japan  and  Russia  being  brought  to  an  end  by  the  good  offices 
of  the  President  of  the  United  States,  who  had  recently  proposed  to 
the  Powers  the  meeting  of  a  second  conference,  steps  were  taken  by 
Russia  immediately  after  the  signing  of  the  treaty  of  Portsmouth  on 
September  6.  1905,  to  arrange  for  that  second  conference  whose  meet- 
ing had  already  been  assured  by  the  President  of  the  United  States. 

Through  the  tactful  intervention  of  Mr.  Root,  who  had  succeeded 
Mr.  Hay  as  Secretary  of  State  upon  his  untimely  death,  a  method  was 
devised  allowing  non-signatory  States  to  adhere  to  the  acts  of  the 


INTKOOLCTION 


First  Confcrttice,  and  throuRh  Secretary  Root's  wisdom,  foresight  and 
initiative  all  American  StatK  \v<tc  invitrd  to  si-ml  (!i-h'!,'ntc-  to  the 
Second  Conference,  instead  of  tlic  three  .\merican  lepubhcs  alone 
invited  to  the  I-irst. 

Secretary  Root's  instructions  to  the  American  delegates  to  the 
Second  Conference  show  the  same  interest  in  that  august  assembly, 
and  the  desire  for  positive  results  tending  to  preserve  the  jjcace  of  the 
world.  a>  did  the  instructions  of  his  illustrious  predecessor. 

The  American  delegates  to  the  Second  Conference,  under  the  leader- 
ship of  the  Honorable  Joseph  H.  Choate,  were  not  the  least  influential 
in  securing  the  accej)tance  in  principle  of  the  Court  of  Arbitral  Jus- 
tice, a  court  to  be  composed  of  permanent  judges  acting  under  a  sense 
of  judicial  responsibility,  to  be  established  alongside  of  the  so-called 
Permanent  Court  of  the  First  Conference,  due  in  such  large  measure  to 
the  efTorts  of  the  American  delegation  at  that  Conference. 

The  reports  of  the  American  delegates  to  the  two  Conferences  are 
clear,  accurate  and  convincing  documents,  written  irom  the  standpoint 
of  firm  believers  in  international  justice  and  therefore  in  international 
peace.  They  are  worthy  to  be  placed  side  by  side,  both  in  spirit  and 
execution,  with  the  instructions  of  the  Secretaries  of  State,  and  they 
are  here  printed  side  by  side  in  order  that  the  .American  people  may,  in 
this  tragic  moment  of  the  world's  history,  be  assured  that  the  leader- 
ship in  international  organiration  has  passed  into  firm  and  enlightened 
hands  in  this  Republic  of  ours,  which  again  has  become  the  hope  of 
mankind. 

America  of  the  present  day  is  not  wholly  unworthy  of  the  founders 
of  the  Republic  and  can  be  trusted  to  exercise  its  leadership,  which  it 
would  have  won  had  it  not  been  thrust  upon  it  by  the  madness  and 
folly  of  Europe,  in  the  interest  of  the  small  Powers  whose  only  defense 
is  justice,  as  well  as  in  the  interest  of  the  larger  Powers  whose  well- 
being,  like  the  small  Powers,  is  best  promoted  by  justice. 

It  has  been  the  wont  of  European  diplomats  to  question  the  good 
faith  nf  the  United  St.itcs  in  cnterin?  into  treaties,  because  of  the  diffi- 
culty that  Presidents  have  had  from  time  to  time  in  securing  the  advice 
and  the  consent  of  the  Senate  to  their  ratification.  More  than  one  dip- 
lomat questioned  the  good  faith  of  the  United  States  at  the  Second 
Hague  Conference,  but,  although  our  Government  is  not  without  its 
shortcomings,  and  has  no  doubt  made  mistakes  betimes,  it  went  to  war 
to  secure  the  freedom  of  Cuba  and  did  not  annex  it  at  the  end  of  the 


iNTRonrrTioN 


III 


war:  it  occupied  tlu-  Island  at  a  later  date,  but,  in  accordance  with  the 
provisions  of  a  treaty  Krantinj;  that  pormission,  withdrew  when  order 
had  lieen  restored,  in  accordance  with  its  pronii»e  so  to  do.  Since  the 
adjourniiicnt  of  the  Second  Ilajjtie  Conference  the  world  has  witnessed 
the  resi)ect  which  the  United  States  accords  to  treaties  by  repealing  a 
solemn  Act  of  Congress  Ki^'"R  ^  slight  benefit  to  the  ships  of  the 
Unite<l  States  passing  through  a  canal  built  wholly  bv  its  money,  be- 
cause a  foreign  Government  with  which  it  had  a  treaty  asserted  that 
the  exemption  from  the  payment  of  tolls  by  American  ships  engaged 
in  the  coastwise  trade  was  a  violation  of  the  spirit  if  not  of  the  letter 
of  the  treaty. 

It  is  hoped  th-M  this  little  book  will  interest  every  person  into  whose 
hands  it  may  fall,  and  in  so  doing  tend  to  create  a  public  opinion 
favorable  to  the  Hague  Conferences  and  an  insistence  that  violent 
hands  be  not  laid  ujwii  its  work. 

Tames  Brown  SroTT, 
Director  of  the  Di7'ision  of  futernalional  Law. 

\V.\.siii\(;t().\.  I).  C, 
February  jS,  igi6. 


1  C0NTLNT8 

I  Page 

j  Thk  CiiNi'lJit:N<t  or  IKW 

I'rcliminary  lJ<i«umcnl« 

Kufiaii  CirciiUr  Nulf  prupiininK  th*  First   I'rarc  Coiiftrrticr 1 

Kii^MUii   lircuUr   Note   prnpiiiiiiiK  the   I'roKram  i)f   the-   Fimt   Con- 

,  fercnce     J 

i  tn!itructiijn.i  to  the  American  Delegates  to  llir  i{aKU>'  I'onfireiict  o(  IK'W      6 

•?  Annex  A  ^  Historical   Hisumi    ^ 

Annex  H:   I'laii   for  an    International  Trihunal M 

Report  to  the  Secretary  of   State  of  the  Delegates  to  the  Fir^t   Hagur 

Conference   '7 

!<ep(.rt  lit  Captain  Croiier  to  the  American  Delegation  to  the  First 
MaKne  Conference,  regarding  the  work  of  the  F'irst  Comriiittee 

of  the  Conference  and  its  si'bcommittee 2H 

Kiport  of  Captain  Mahan  to  the  American  Delegation  to  the  F"ir>t 
Hague    Conference,    on    Disarmament,    etc.,    with    reference    to 

Navies    ^5 

Keport  of  C.iptain  Mahan  to  rhe  American  Delegation  to  the  First 
Hague  Conference,  regarding  the  work  of  the  Second  Com- 
mittee of  the  Conference -58 

Paper  read  by  Captain  Mahan  before  the  Second  Committee  of  the 

Peace  Conference  on  June  20,  18W 4J 

Keport  of  Captain  Crozier  to  the  American  Delegation  to  the  First 
Hague  Conference,  regarding  the  work  of  the  second  subconi 

mittee  of  the  Second  Committee  tif  the  Conference 45 

Reports  of  Messrs.  White,  Low  and  Holls  to  the  American  Delega- 
tion, regarding  the  work  of  the  Third  Committee  of  the  Con- 
ference       51 


ThK   CoNFMl-NCK   OF    VKU 

Prelim'iary  Documents 

The  Secretary  of  State  of  the  United  States  to  the  American  Diplo- 
matic Representatives  accredited  to  the  Governments  Signatory 
to  the  Acts  of  the  First  Hague  Conference 59 

The  Secretary  of  State  of  the  United  States  to  the  American 
Representatives  accredited  to  the  Governments  Signatory  to 
the  Acts  of  the   First  Hague  Conference 63 

Memorandum  from  the  Russian  Embassy  handed  to  the  President 
of  I'le  United  States,  September  13.  1905,  proposing  a  Second 
Peace  Conference  at  The  Hague 65 

The  Russian  Ambassador  to  the  Secretary  of   State  proposing  the 

Program  of  the  Second  Conference 66 

Instructions  to  the  American  Delegates  to  the  Hague  Conference  of  l'X)7    69 
Report  to  the  Secretary  of  State  of  the  Delegates  to  the  Second  Hague 

Conference   ^ 


) 


THE  HAGUE  CONFERENCE  OF  1899 

PRELIMINARY  DOCUMENTS 

RUSSIAN    CIRCUl-AK     NDIK     I'ROI'OSI  .\(,    THK    FIRST     PEACE    CONKKRENCE' 

llie  maintenance  of  >;enera!  piace  and  a  possible  reduction  of  the 
excessive  arnianients  which  \vei;,di  upon  all  nations  present  themselves, 
in  the  existing  condition  of  the  whole  world,  as  the  ideal  towards  which 
the  endeavors  of  all  ( iovernments  should  be  directed. 

The  humanitarian  and  magnanimous  views  of  His  Majesty  the  Em- 
peror, my  august  master,  are  in  perfect  accord  with  this  sentiment. 

In  the  conviction  that  this  lofty  aim  is  in  conformitv  with  the  most 
exsenliai  interests  and  the  legitimate  aspirations  of  all  Powers,  the 
Imperial  Government  believes  that  the  present  moment  would  be  very 
favorable  for  seeking,  by  means  of  international  discussion,  the  most 
effective  means  of  ensuring  to  all  peoples  the  benefits  of  a  real  and 
lasting  peace,  and  above  all  of  limiting  the  progressive  development  of 
existing  armaments. 

In  the  course  of  the  la^t  twenty  years  the  longings  for  a  general  state 
of  peace  have  become  especially  pronounced  in  the  consciences  of  civil- 
ized natioiis.  The  [jreservation  of  peace  has  been  put  forward  as  the 
object  of  international  iK)Iicy.  In  its  name  great  States  have  formed 
powerful  .-illiances:  and  for  the  better  guaranty  of  peace  they  have 
develoi)e<l  their  military  forces  to  proi)ortions  hitherto  unknown  and 
still  continue  to  increase  them  without  hesitating  at  anv  sacrifice. 

All  these  efforts  nevertheless  have  not  yet  led  to  the  beneficent  results 
of  the  desired  pacification. 

'  Handed  to  tlio  diplotnatic  representatives  .XiiRust  12/24,  1808,  by  Count 
Moiiravicff,  Ru>si.iii  Minister  fur  F.ireisn  Affairs,  during  the  weekly  reception 
m  the  ForeiRii  OlTice.  Petrojjrad.  French  text  in  .Utrs  ct  docttmciits  rehitifs  au 
frn.inimmr  dr  la  Conft-rence  de  la  paix,  fiihlirs  d'ordrc  du  i'l.niv.riwmcnt  (The 
Hairue,  18W)  :  Dritisli  Parliamentary  Paper.  I^issia.  N'd.  1,  18<>9.  p.  1;  French 
Diplomatic  DrKnment.  ('r'i:/,Ti'n,  ,•  inlcrnationnl,'  dc  /.;  paix,  ;,S'oo.  p.  1.  Fnglish 
versions  in  I'><rciiin  KrhUi.'ii.s  of  lli,-  I'nilcd  States,  1808  p  s41  •  HoUs  The 
/'.u.v  Confcrnuc  r.t  The  lla,/ur,  p.  S;  Scott.  The  Haaue  I'eaee  Conferences  of 
r'OO  and  !'>i>~,  vt.l.  ii.  p.  1;  Moore,  l)i<iest  of  International  I.a:.;  vol  7  p  78' 
Darby,  International  Tribunals  (4lh  ed).  p,  6,M :  and  the  British  Parhanientary 
Paper  above  cited. 


THE    HAGUE   CONFERENCE  OF    1899 


The  ever-increasing  financial  charges  strike  and  paralyze  public  pros- 
perity at  its  source;  the  intellectual  and  physical  strength  of  the  na- 
tions, their  labor  and  capital,  are  for  the  most  part  diverted  from  their 
natural  application  and  unproductively  consumed ;  hundreds  of  millions 
are  spent  in  acquiring  terrible  engines  of  destruction,  which  though 
to-day  regarded  as  the  last  word  of  science  are  destined  to-morrow  to 
lose  all  value  in  consequence  of  some  fresh  discovery  in  the  same  field. 
National  culture,  economic  progress,  ant!  the  production  of  wealth  are 
either  paralyzed  or  perverted  in  their  development. 

Moreover,  in  projiortion  as  the  armaments  of  each  Power  increase, 
so  do  they  less  and  less  attain  the  object  aimed  at  by  the  Governments. 
Economic  crises,  due  in  great  part  to  the  system  of  amassing  arma- 
ments to  the  point  of  exhaustion,  and  the  continual  danger  which  lies  m 
tliis  accumulation  of  war  material,  are  transforming  the  armed  peace 
of  our  days  into  a  crushing  burden  which  the  peoples  have  more  and 
more  difficulty  in  bearing.  It  appears  evident,  then,  that  if  thi3  state  of 
affairs  be  prolonged,  it  will  inevitably  lead  to  the  very  cataclysm  which 
it  is  desired  to  avert,  and  the  impending  horrors  of  which  are  fearful 
to  every  human  thought. 

In  checking  these  increasing  armaments  and  in  seeking  the  means  of 
averting  the  calamities  which  threaten  the  entire  world  lies  the  supreme 
dutv  to-dav  resting  upon  all  States. 

Imbued  with  this  idea,  His  Majesty  has  been  pleased  to  command 
me  to  propose  to  all  the  Governments  which  have  accredited  represen- 
tatives at  the  Imperial  Court  the  holding  of  a  conference  to  consider 
this  grave  problem. 

This  conference  would  be,  by  the  help  of  God.  a  happy  presage  for 
the  century  about  to  oi>cn.  It  would  converge  into  a  single  powerful 
force  the  efTorts  of  all  the  States  which  sincerely  wish  the  great  con- 
ception of  universal  peace  to  triumph  over  the  elements  of  disturbance 
and  discord.  It  would  at  the  same  time  cement  their  agreement  by  a 
solemn  avowal  of  the  principles  of  equity  and  law.  upon  which  re- 
pose the  security  of  States  and  the  welfare  of  penple-. 

Cor.NT   Mol-K.\VIF.FF. 

Si.  PETERSituur.,  Aueiist  /-',  iSoS. 


PRELIMINARY     DOCUMENTS 


russian  circular  note  prol-osing  the  program  of  the  first 
conference' 

St.  PiiTERSBURG,  December  jo,  i8gS.- 

VVhen,  during  the  month  of  August  last,  my  august  master  com- 
manded me  to  propose  to  the  (Invcrnnients  which  liave  representatives 
in  St.  Petersburg  the  meeting  of  a  conference  with  the  object  of  seek- 
ing the  most  effective  means  of  ensuring  to  all  peoples  the  benefits  of  a 
real  and  lasting  peace  and,  above  all,  of  limiting  the  progressive  de- 
velopment of  existing  armaments,  there  appeared  to  be  no  obstacle 
in  the  way  of  realization  at  no  distant  date  of  this  humanitarian  scheme. 

The  cordial  reception  accorded  by  nearly  all  the  Powers  to  the  step 
taken  by  the  Imperial  Government  could  not  fail  to  strengthen  this 
expectation.  While  highly  appreciating  the  sympathetic  terms  in  which 
the  adht'.'ions  of  most  of  the  i'owcrs  were  expressed,  the  Imperial 
Cabinet  has  been  also  able  to  collect,  with  lively  satisfaction,  evidence 
of  the  warmest  approval  which  has  reached  it.  and  continues  to  be  re- 
ceived, from  all  classes  of  society  in  various  parts  of  the  world. 

Notwithstanding  the  strong  current  of  opinion  which  exists  in  favor 
of  the  ideas  of  general  pacification,  the  political  horizon  has  recently 
undergone  a  decided  change.  Several  Powers  have  undertaken  fresh 
armaments,  striving  to  increase  further  their  military  forces,  and  in 
the  presence  of  this  uncertain  situation  it  might  be  asked  whether  the 
Powers  consider  the  present  moment  opportune  for  the  international 
discussion  of  the  ideas  set  forth  in  the  circular  of  August  12/24. 

In  the  hope,  however,  that  the  elements  of  trouble  agitating  political 
centers  will  soon  give  place  to  a  calmer  disposition  of  a  nature  to  favor 
the  success  of  the  proposed  conference,  the  Imperial  Government  is  of 
the  opinion  that  it  would  be  possible  to  proceed  forthwith  to  a  prelim- 
inary exchange  of  ideas  between  the  Powers,  with  the  object : 

(a)  Of  seeking  without  delay  means  for  putting  a  limit  to  the  pro- 
gressive increase  of  militant'  and  naval  armaments,  a  question  the  solu- 
tion of  which  becomes  evidently  more  and  more  urgent  in  view  of 
the  fresh  extension  given  to  these  armament?  :  and 


'Handed  to  the  diplomatic  representatives  at  Petrograd,  January  11.  1899. 
hy  Count  Mouravieff.  French  text  in  Actes  cl  documents  relalifs  an  pmrjammc 
di-  la  Conference  de  la  faix:  British  Parliamentary  Paper.  Miscellaneous.  No.  1. 
1809.  p.  2;  French  Diplomatic  Docjment.  Conference  internatinnale  de  li  paix. 
Wf).  p.  ,1  F.nghsh  versions  in  foreign  Relations  of  the  United  States.  1898,  p. 
SS)  :  HoUs.  pp.  cit.,  p.  24:  Scott,  np.  cit.,  vol.  ii.  p.  ,3;  Moore,  op  cit.,  vol.  7,  p. 
80:  Darhy,  op.  cit.,  p.  638;  and  the  Britisli   Parli.imtntary   Paper  alKne  cited 

^January  11,  1899,  new  style. 


THE    HAGUE    CONFERENCE  OF    1899 


(b)  Of  preparing  the  way  for  a  discussion  of  the  questions  relating 
to  the  possibility  of  preventing  armed  conflicts  by  the  pacific  means  at 
the  disposal  of  international  diplomacy. 

In  llie  event  of  the  I'owirs  considering  the  present  moment  favorable 
for  the  meeting  of  a  conference  on  these  bases  it  would  certainly  be 
useful  for  the  cabinets  to  come  to  an  understanding  on  the  subject  of 
tlie  program  of  its  work. 

The  subjects  to  be  submitted  for  international  discussion  at  the  con- 
ference could,  in  general  terms,  be  summarized  as   follows: 

1  \n  understanding  stipulating  the  non-augmentation,  for  a 
term  to  be  agreed  upon,  of  the  present  eflFective  armed  land  and  sea 
forces,  as  well  as  the  war  budgets  pertaining  to  them;  preliminary 
study  of  the  wavs  in  which  even  a  reduction  of  the  aforesaid  effect- 
ives and  budgets  could  be  realized  in  the  future. 

i  Interdiction  of  the  emplovment  in  armies  and  fleets  of  new 
firearms  of  evcrv  description  and  of  new  explosives,  as  well  as 
powder  more  powerful  than  the  kinds  used  at  present,  both  for 
gun-  and  cannons.  ,        ,     .  c      c 

3  Limitation  of  the  use  in  field  fighting  of  explosives  of  a  for- 
midable p,jwer,  .i-.ch  as  are  now  in  use,  and  prohibitK.n  of  the  dis- 
charge of  any  kind  of  projectile  or  explosive  from  balloons  or  by 

similar  means.  ,        ,      ,         •  i-  : 

4  Prohibition  of  the  use  in  naval  battles  of  submarine  or  diving 
torpedo  boats,  or  of  other  engines  of  destruction  of  the  same  na- 
ture:  agreement  not  t-  construct  in  the  future  war-ships  armed 

'"3'  Ad'aptation  to  naval  war  of  the  stipulations  of  the  Geneva 
Convention  of  1864,  on  the  base  of  the  additional  articles  of  18&8, 
ty    Neutralisation,  for  the  same  reason,  of  boats  or  launches  em- 
ployed in  the  rescue  of  the  shipwrecked  during  or  after  naval 

^7  ^Revision  of  the  declaration  concerning  the  laws  and  customs 
of  war  elaborated  in  1874  hy  the  Conference  of  Hmssels,  and  not 

^%  "\ccentance,  in  principle,  of  the  u-e  of  good  offices,  mediation, 
and'  voluntarv  arbitration,  in  cases  where  they  are  available,  witli 
the  purpose  of  preventing  armed  conflicts  between  nations :  under- 
standing in  relation  to  their  mode  of  application  and  est.-iblishment 
of  a  uniform  practice  in  employing  them. 

It  is  will  understood  that  all  qucstic  is  concerning  the  political  re- 
lations of  States  and  the  order  of  things  established  by  treaties,  as  in 
general  .^11  questions  which  do  not  directly   fall  within  the  program 


PRELIMINARY    DOCUMENTS  5 

adopted  by  the  caliinets,  must  be  absolutely  excluded  from  the  delibera- 
tions of  the  conference. 

In  requesting  you,  sir.  to  be  good  enough  to  apply  to  your  Govern- 
ment for  instructions  on  the  subject  of  my  present  communication,  I 
beg  you  at  the  same  time  to  inform  it  that,  in  the  interest  of  the  great 
cause  which  my  august  master  has  so  much  at  heart.  His  Imperial 
Majesty  considers  it  advisable  that  the  cc^nference  should  not  sit  in  the 
capital  of  one  of  the  Great  Powers,  where  are  centered  so  many  polit- 
ical interests,  which  might,  perhaps,  impede  the  progress  of  a  work  in 
which  all  countries  of  the  universe  are  equally  interested. 

I  have,  etc., 

Count  Mouravieff. 


% 


INSTRUCTIONS  TO  THE  AMERICAN  DELEGATES  TO  THE  HAGUE 
CONFERENCE  OF  1899' 

Mr.  Hay  to  lion.  Andreiv  D.  White,  Hon.  Scth  Lozv,  Hon.  Stanford 
Newel.  Capt.  Alfred  T.  Mahan,  U.  S.  A'..  Capt.  H'illiam  Croaier, 
(J.  S.  ./.,  delegates  on  tlw  part  of  the  President  of  the  United 
States. 

Department  oi"  Stati:, 
IP'ashington,  April  /<S',  /cS'pp. 
Gentlemen:  You  have  been  appointed  by  the  President  to  consti- 
tute a  commission  to  represent  him  at  an  international  conference 
called  by  His  Imperial  Maji  ♦y  the  Emperor  of  Russia  to  meet  at  The 
Hague,  at  a  time  to  be  indicated  by  the  Government  of  the  Netherlands, 
for  the  purpose  of  discussing  the  most  efficacious  means  of  assuring 
to  all  peoples  the  "benefits  of  a  real  and  durable  peace." 

L'pon  your  arrival  at  The  Hague  you  will  effect  an  organization  of 
your  commission,  whose  records  will  be  kept  by  your  secretary,  Hon. 
Frederick  W.  Holls.  All  reports  and  communications  will  be  made 
through  this  Department,  according  to  its  customary  forms,  for  pres- 
ervation in  the  archives. 

The  program  of  topics  suggested  by  the  Russian  Minister  of  Foreign 
Affairs  for  discussion  at  the  Conference  in  his  circular  of  December 
30.  1898,  is  as  follows: 

1.  An  understanding  stipulating  the  non-augmentation,  for  a 
term  to  he  agreed  upon,  of  the  present  effective  armed  land  and 
sea  forces,  as  well  as  the  war  budgets  pertaining  to  them ;  pre- 
liminan,-  study  of  the  ways  in  which  even  a  reduction  of  the 
aforesaid  effectives  and  budgets  could  be  realized  in  the  future. 

2.  Interdiction  of  the  employment  in  armies  and  fleets  of  new 
firearms  of  every  description  and  of  new  explosives,  as  well  as 
powder  more  powerful  than  the  kinds  used  at  present,  both  for 
guns  and  cannons. 

3.  Limitation  of  the  use  in  field  fighting  of  explosives  of  a 
formidable  power,  such  as  now  in  use,  and  prohibition  of  the 
discharge  of  any  kind  of  projectiles  or  explosives  from  balloons 
or  by  similar  means. 

4.  Prohibition  of  the  use  in  naval  battles  of  submarine  or  diving 


^Forvujn  Relations  of  the  United  Stole.i,  1899,  p.  511 ;  Scott,  op.  1 1(..  vol  ii,  p.  6. 


INSTRUCTIONS  TO  THE  AMERICAN  DELEUATIOX  7 

torpedo  boats,  or  of  other  engines  of  destruction  of  the  same 
nature;  agreement  not  to  construct  in  the  future  war-ships  armed 
with  rams. 

5.  Adaptation  to  naval  war  of  the  stipulation  of  the  Cicncva 
Convention  of  1864,  du  the  base  of  the  additional  articles  of  1868. 

6.  Neutralization,  for  the  same  reason,  of  boats  or  launches 
employed  in  the  rescue  of  the  shipwrecked  during  or  after  naval 
battles. 

7.  Revision  of  the  Declaration  concerning  the  laws  and  customs 
of  war  elaborated  in  1874  by  the  Conference  of  Brussels,  and  not 
yet  ratified. 

8.  Acceptance,  in  principle,  of  the  use  of  good  offices,  media- 
tion, and  voluntary  arbitration,  in  cases  where  they  are  available, 
with  the  purpose  of  preventing  armed  conflicts  between  nations ; 
understanding  in  relation  to  their  mode  of  application  and  estab- 
lishment of  a  uniform  practice  in  employing  them. 

It  is  understood  that  all  questions  concerning  the  political  relations 
of  States  and  the  order  of  things  established  by  treaties,  as  in  general 
all  the  questions  which  shall  not  be  included  directly  in  the  program 
adopted  by  the  cabinets,  should  be  absolutely  excluded  from  the  delib- 
erations of  the  Conference. 

The  first  article,  relating  to  the  non-augmentation  and  future  reduc- 
tion of  effective  land  and  sea  forces,  is,  at  present,  so  inapplicable  to 
the  United  States  that  it  is  deemed  advisable  for  the  delegates  to  leave 
the  initiative  upon  this  subject  to  the  representatives  of  those  Powers 
to  which  it  may  properly  belong.  In  comparison  with  the  cfifective 
forces,  both  military  and  naval,  of  other  nations,  those  of  the  United 
States  are  at  present  so  far  below  the  normal  quota  that  the  question 
of  limitation  could  not  be  profitably  discussed. 

The  second,  third,  and  fourth  articles,  relating  to  the  non-employ- 
ment of  firearms,  explosives,  and  other  destructive  agents,  the  re- 
stricted use  of  existing  instruments  of  destruction,  and  the  prohibition 
of  certain  contrivances  employed  in  naval  warfare,  seem  lacking  in 
practicability,  and  the  discussion  of  these  propositions  would  probably 
prove  provocative  of  divergence  rather  than  imanimity  of  view.  It 
is  doubtful  if  wars  are  to  be  diminished  by  rendering  them  less  de- 
stnictive.  for  it  is  the  plain  lesson  of  history  that  the  periods  of  peace 
have  been  longer  protracted  as  the  cost  and  destructiveness  of  war 
have  increased.  The  expediency  of  restraining  the  inventive  genius 
of  our  people  in  the  direction  of  devising  means  of  defense  is  by  no 
means  clear,  and  considering  the  temptations  to  which  men  and  na- 


8 


THE    HAGUE    CONFEKENCE   OF    1899 


tions  may  be  exposed  in  a  time  of  conflict,  it  is  doubtful  if  an  inter- 
national asrcemcnt  to  this  end  would  prove  el'teclive.  The  dissent 
of  a  single  powerfnl  nation  might  render  it  altogether  nugatory. 
The  delegates  are,  therefore,  enjoined  not  to  give  the  weight  of  their 
inHuence  to  the  promotion  of  projects  the  realization  of  which  is  so 
uncertain. 

The  fifth,  six,  and  seventh  articles,  aiming  in  the  interest  of  human- 
ity to  succor  those  who  by  the  chance  of  battle  have  been  rendered 
helpless,  thus  losing  the  character  of  effective  combatants,  or  to  alle- 
viate their  sufferings,  or  to  ensure  the  safety  of  those  whose  mission 
is  purely  one  of  peace  and  beneficence,  may  well  awake  the  cordial 
interest  of  the  delegates,  and  any  practicable  propositions  based  upon 
them  should  receive  their  earnest  sup|)ort. 

The  eighth  article,  which  projxises  the  wider  extension  of  good 
offices,  mediation  and  arbitration,  seems  likely  to  open  the  most  fruitful 
field  for  discussion  and  future  action.  "The  prevention  of  armed  con- 
flicts by  pacific  means,"  to  use  the  words  of  Count  Mouravieff's  cir- 
cular of  December  30,  is  a  purpose  well  worthy  of  a  great  international 
convention,  and  its  realization  in  an  age  of  general  enlightenment 
should  not  be  impossible.  The  duty  of  sovereign  states  to  promote  in- 
ternational justice  by  all  wise  and  effective  means  is  only  secondary  to 
the  fundamental  necessity  of  preserving  their  own  existence.  Next 
in  importance  to  their  independence  is  the  great  fact  of  their  inter- 
dependence. Nothing  can  secure  for  human  government  and  for  the 
authority  of  law  which  it  represents  so  deep  a  respect  and  so  firm  a 
loyalty  ns  the  spectacle  of  sovereign  and  independent  States,  whose 
dutv  it  is  to  prescribe  the  rules  of  justice  and  impose  penalties  upon 
the  lawless,  bowing  with  reverence  before  the  august  supremacy  of 
those  principles  c»f  right  which  give  to  law  its  eternal  foundation. 

The  proposed  conference  promises  to  offer  an  opportunity  thus  far 
nnequaled  in  the  history  of  the  world  for  initiating  a  series  of  nego- 
tiations that  may  lead  to  important  practical  results.  The  long- 
continued  and  widespread  interest  among  the  people  of  the  I'nited 
States  in  the  establishment  of  an  international  court,  as  evidenced  in 
the  historical  resume  attached  to  these  instructions  as  Annex  .V.  gives 
assurance  that  the  uropo'-al  of  a  definite  plan  of  procedure  by  this 
Government  for  the  accomplishment  of  this  end  would  express  the 
desires  and  aspirations  of  this  nation.  The  delegates  are,  therefore, 
enjoined  to  propose,  at  an  opportune  moment,  the  plan  for  an  inter- 


^Post,  p.  9. 


INSTRUCTIONS  TO  THE  AMERICAN  DELEGATION  9 

national  tribunal,  hereunto  attached  as  Annex  U',  and  to  use  their  in- 
fluence in  the  conference  in  the  most  effective  manner  possible  to  pro- 
cure the  adoption  of  its  substance  or  of  resolutions  directed  to  the 
same  purpose.  It  is  believed  that  the  disposition  and  aini>  of  the 
L'nited  States  in  relation  to  the  other  sovereign  Powers  could  not  be 
expressed  more  truly  or  opportunely  than  by  an  effort  of  the  delepatts 
of  this  (.iovernment  to  concentrate  the  attention  of  the  world  u  .n  a 
definite  plan  for  the  promotion  of  international  justice. 

Since  the  Conference  has  its  chief  reason  of  existence  in  the  heavy 
burdens  and  cruel  waste  of  war,  which  nowhere  affect  innocent  private 
persons  more  severely  or  unjustly  than  in  the  damage  done  to  peace- 
able trade  and  commerce,  especially  at  sea,  the  question  of  exempting 
private  property  from  destruction  or  cajjture  on  tl.e  hijjh  seas  would 
seem  to  be  a  timely  one  for  consideration. 

.As  the  Ignited  States  has  for  many  years  advocated  the  exemption 
of  all  private  property  not  contraband  of  war  from  hostile  treatment, 
you  are  authorized  to  propose  to  the  Conference  the  principle  of  ex- 
tending to  strictly  private  property  at  sea  the  immunity  from  de- 
struction or  capture  by  belligerent  Powers  which  such  property 
already  enjoys  on  land  as  worthy  of  being  incorporated  in  the  f>erma- 
nent  law  of  civilized  nations. 

I   am,  etc., 

John  Hay. 


[Annex  A] 


HISTORICAL  RESUME 


From  time  to  time  in  the  history  of  the  l'nited  States,  propositions 
have  been  made  for  the  establishment  of  a  system  of  peaceful  adjust- 
ment of  differences  arising  between  nations.  As  early  as  February. 
1832,  the  Senate  of  Massachusetts  adopted,  by  a  vote  of  19  to  .^i,  a 
resolution  expressing  the  opinion  that  "some  mode  should  be  estalv 
lished  for  the  amicable  and  final  adjustment  ^f  all  international  dis- 
putes instead  of  resorting  to  war." 

.\  similar  resolution  was  unanimously  passed  by  the  house  of  rep- 
resentatives of  the  same  State  in  1837.  and  by  the  senate  by  a  vote 
of  35  to  -. 

.\  little  prior  to  1840  there  was  much  popular  agitation  regarding 

^Fosl,  p.  24. 


10 


THE    HAGUE    CONFERENCE  OF    1899 


the  convocation  of  a  congress  of  nations  for  the  purpose  of  establish- 
ing an  international  tribunal.  This  idea  was  commended  by  resolu- 
tions adopted  by  the  legislature  of  Massachusetts  in  1844  and  by  the 
legislature  of  Vermont  in  1852. 

In  February,  1851,  Mr.  Foote,  from  the  Committee  on  Foreign 
Relations,  reported  to  the  Senate  of  the  United  States  a  resolution 
that  "in  the  judgment  of  this  body  it  would  be  proper  and  desirable 
for  the  ("lovernment  of  these  I'nited  States  whenever  practicable  to 
secure  in  its  treaties  with  other  nations  a  provision  for  referring  to 
the  decision  of  umpires  all  future  misunderstandings  that  can  not  be 
satisfactorily  adjusted  by  amicable  negotiations  in  the  first  instance, 
before  a  resort  to  hostilities  shall  be  had." 

Two  years  later  Senator  Underwood,  from  the  same  committee, 
reported  a  resolution  of  advice  to  the  President  suggesting  a  stipula- 
tion in  all  treaties  hereafter  entered  into  with  other  nations  referring 
the  adjustment  of  any  misunderstanding  or  controversy  to  the  deci- 
sion of  disinterested  and  impartial  arbitrators  to  be  mutually  chosen. 

May  31,  1872,  Mr.  Sumner  introduced  in  the  Senate  a  resolution 
in  which,  after  reviewing  the  historical  development  of  municipal 
law  and  the  gradual  suppression  of  private  wa-",  and  citing  the  pro- 
gressive action  of  the  Congress  of  Paris  with  regard  to  neutrals,  he 
proposed  the  establishment  of  a  tribunal  to  be  clothed  with  such 
authoritv  as  to  make  it  a  "complete  substitute  for  war,"  dcclnring  a 
refusal  to  abide  by  its  judgment  hostile  to  civilization,  to  the  end 
that  "war  may  cease  to  be  regarded  as  a  proper  form  of  trial  between 
nations." 

In  1874  a  resolution  favoring  general  arbitration  was  passed  by  the 
House  of  Representatives. 

April  1,  1883.  a  confidential  inquiry  was  addressed  to  Mr.  Freling- 
huysen.  Secretary  of  State,  by  Colonel  Frey,  then  Swiss  Minister  to 
the  United  State-.,  regarding  the  possibility  of  concluding  a  gener.il 
treaty  of  arbitration  between  the  two  countries.  Mr.  Frelinghuysen, 
citini,'  the  general  policy  of  this  country  in  past  years,  expressed  liis 
disposition  to  consider  the  i)roi>osition  with  favor.  September  5. 
1883,  Colonel  I"rey  submitted  a  draft  of  a  treaty,  the  reception  ot 
which  was  acknowledged  by  Mr.  Frelinghuysen  on  the  2r)th  of  the 
same  nrmth.  This  draft,  adopted  by  the  Swiss  Federal  Council 
July  24,  1883.  presented  a  short  plan  of  arbitration.  These  negotia- 
tions were  referred  to  in  the  President's  Annual  Message  for  1883, 
but  were  not  concluded. 


INSTRUCTIONS  TO  THE  AMERICAN  DELEGATION 


11 


In  1888,  a  communication  havinjf  been  made  to  the  President  and 
Congress  of  tlie  United  States  by  two  hundred  and  thirty-five  mem- 
bers of  the  British  F^arliament,  urginff  the  concUision  of  a  treaty  of 
arbitration  l)etweeti  the  United  States  and  (jreat  Britain,  and  re- 
enforced  by  petitions  and  memorials  from  muhitudes  of  individuals 
and  ass(x•iation^  from  Maine  to  Cahfornia,  great  enthusiasm  was 
exhibited  in  its  reception  by  eminent  citizens  of  New  York.  As  a 
result  of  this  movement,  on  June  13,  1888,  Mr.  Sherman,  from  the 
Committee  on  Foreign  Relations,  reported  to  the  Senate  a  joint 
resolution  requesting  the  President  "to  invite,  from  time  to  time, 
as  fit  (K'tasions  may  arise,  negotiations  with  any  Government  with 
which  the  United  States  has  or  may  have  diplomatic  relations,  to 
the  end  that  the  differences  or  disputes  arisir.g  between  the  two 
Governments  vhich  can  not  be  adjusted  by  diplomatic  agency  may  be 
referred  to  arV'tration,  and  Ik?  peaceably  adjusted  by  such  means." 

November  29,  1881.  Mr.  Blaine,  Secretary  of  State,  invited  the 
Governments  of  the  American  nations  to  participate  in  a  Congress 
to  be  held  in  the  city  of  Washington.  November  24,  1882,  "for  the 
purpose  of  considering  and  discussing  the  methods  of  preventing  war 
between  the  nations  of  .America."  For  special  reasons  the  enterprise 
w-T  f'mporarily  abandoned,  but  was  afterwards  revived  and  enlarged 
i  igress,  and  an  act  was  passed  authorizing  the  calling  of  the 

Ini  .ational  American  Conference,  which  as.cmbled  in  Washington 
in  the  autumn  of   1889.     On  .April  "'0.  referring  to  this  plan 

of  arb.. ration,  Mr.  Blaine  said; 

If,  in  this  clo~  t;  hour,  the  Conference  had  but  one  deed  '■ 
celebrate,  we  should  dare  call  the  world's  attention  to  the  <'■ ' 
erate,  confident,  solemn  dedication  of  two  great  continen-  i 
peace,  and  to  the  prosperity  which  has  peace  for  its  found.t  i. 
We  hold  up  this  new  Ma:^»a  Charta,  which  abolishes  war  rid 
substitutes  arbitration  between  the  American  republics,  a-  the 
first  and  great  fruit  of  the  "International  American  Conference." 


The  Senate  of  the  United  States  on  F  iruary  14,  18*X),  and  the 
House  of  Representatives  on  .\pril  3,  1  ■' 0,  adopted  a  concurrent 
resolution  in  the  language  reported  by  ^lr.  Sherman  to  the  Senate 
in  June,  1888. 

July  8,  1895,  the  French  Chamber  of  Deputies  unanimously  re- 
solved: 


12  THE    HAGUE    CONFKKKNCE   (IF    IT.W 

The  Cliaiiiticr  invites  the  ( idvemnient  to  iienoliatc  as  soon  a» 
pi»silik-  .1  ptrmamiu  treaty  oi  aihitraiiuu  lutweeii  the  Ireiich 
Kcpuhhc  ami  tlie  Kepiihlic  of  the  I'liite.l  StateN  «it  Ameriea. 

July  1(1,  IK'M,  tlie  liritish  Ihni-e  nf  Conitnoiis  ailnpteii  tlie  fullow- 
iny  ri>ohiiii)n : 

kist'k'id,  That  this  limine  lia>  learnt  \uth  siti>faition  that 
hoth  lionet's  of  the  I'niteil  State-  Connres-  have,  hy  reMilutiun. 
re<|ue-te(l  the  I're-ident  ti>  invite,  Ironi  time  to  time,  as  tit  tica- 
suMis  may  ari>e,  iKt;(ituitioiis  with  any  ^joveninient  with  v\hich 
the  L'liitetl  States  have  or  may  have  dipluniatic  relations,  to  the 
end  that  anv  difTeremes  or  disputes  arising  la^tween  the  two 
(ioveriinicnt-  which  can  not  he  adjusted  hy  diplomatic  ajjency 
may  he  referred  to  arhitration  and  pcaceahly  adjusted  by  such 
meims;  and  that  this  Mouse,  cordially  -ympathi/inj;  with  the 
puriHj-e  in  view,  expresses  the  hoiie  that  Her  Majesty'-  Ciovcrn- 
mcnt  will  lend  their  ready  coiiperation  to  the  ( ".overntrient  of  the 
I'nited   States  upon  the  basis  of  the   foreRoinf,'  resolution. 

Decemlier  4.  18^3,  President  Cleveland  re*  '•rfd  to  the  fore>;oinR 
resolution  of  the   British   House  of  Commons         follows: 

It  affords  me  sjpnal  pleasure  to  lay  this  parlianier'iry  resolu- 
tion before  the  Conpress  and  to  express  my  sincere  ^'ratification 
that  tlie  sentiment  of  two  ^reat  and  kindred  nations  is  thus  author- 
itatively manifested  in  favor  of  the  r.itional  and  pe.-iceable  set- 
tlement of  international  quarrels  by  honorable  resort  to  ar- 
bitration. 

These  rc-olutions  led  to  the  exchange  of  communications  reRanlinp; 
the  concl'-'ion  of  a  permanent  treaty  of  arbitration,  suspended  from 
the  spring  of  lJ<9.=i  to  March  .=;,  ISOH,  when  negotiations  were  resumed 
which  resulted  in  the  sifrnaiuro  of  a  treaty  January  11.  18^7,  between 
the  I'nited   States  and  Great   Britain. 

In  his  inaujriiral  address.  March  4.  1807.  President  McKinley  -aid: 

.Arbitration  is  the  tnie  method  of  settlement  of  international 
as  well  as  local  or  individual  difTerence-^.  It  was  rccopnized  as 
the  best  meaiK  of  adiustment  of  diflfercnces  betvieen  employers 
and  emplnvecs  bv  the  Forty-ninth  Conpress  in  1886,  and  its  ap- 
plication was  extended  to  our  diplomatic  relations  hy  the  unani- 
mous concurrence  of  the  Senate  .and  House  of  the  Fifty-first 
Congress   in    1800.     The   latter   resolution   was   accepted   as  the 


INSTHIJCTIONS  TO  THE  AMKRICAN   DELECATION 


\.\ 


ba>i!i  of  iie^'otiatioti!.  witli  ti!«  l>y  the  Uritish  Huuhc  of  e  oiiiiiioti^ 
111  IffJi,  and  ui>on  our  invitation  a  treaty  of  arbitration  iHJtvvct'ii 
the  Lnitfd  States  and  drvat  Itntain  was  !>igncd  at  \Va>hington 
and  traiisniittod  to  tlic  Senate   for  ratification  in  January  last. 

Since  this  treaty  is  clearly  the  result  of  our  own  initiative,  since 
it  has  been  recognized  as  the  leading  feature  of  our  forcij;ii  |>olicy 
throughout  our  entire  national  history — the  ac'justiiient  of  diffi- 
culties by  judicial  methods  rather  than  for-.e  of  arms — ami  since 
it  presents  to  the  world  the  glorious  example  of  rea>()n  and  [K-ace, 
not  passion  and  war,  controlling  the  relations  between  two  of  the 
greatest  nations  of  the  world,  an  example  certain  to  be  followed 
l)y  others,  1  res[)cct fully  urge  the  eaily  action  of  the  Senate 
tliercon.  not  mere'y  as  a  matter  of  policy,  but  a-,  a  duty  to  man- 
kind. The  imjjortance  and  moral  influence  of  the  ratification  of 
such  a  treaty  can  hardly  b<.'  overestimated  in  the  cause  of  advan- 
cing civilization.  It  may  v  ell  engage  the  best  thought  of  the  states- 
men and  |)eople  of  every  country,  and  I  can  not  but  consider  it 
fortunate  that  it  was  reserved  to  the  United  States  to  have  the 
leaclership  in  so  grand  a  work. 


The  Senate  of  the  United  States  declined  to  concur  in  the  ratifica- 
tion of  the  treaty  of  arbitration  with  Great  Britain,  but  for  reasons 
which  might  not  affect  a  general  treaty  directed  toward  a  similar  end. 

The  publication  by  this  (lovemment  of  the  exhaustive  History  and 
Digest  of  the  International  Arbitrations  to  which  the  United  States 
has  been  a  Party,  by  the  Hon.  John  Bassett  Moore,  late  Assistant 
Secretary  of  State,  a  work  extending  through  six  volumes,  marks  a  new 
epoch  in  the  history  of  arbitration.  It  places  beyond  controversy  the 
applicability  of  judicial  methods  to  a  large  variety  of  international  dis- 
agreements which  have  been  successfully  adjudicated  by  individual  ar- 
bitrators or  temporary  boards  of  arbitration  chosen  by  the  litigants  for 
each  case.  It  also  furnishes  an  exceedingly  valuable  body  of  rules  of 
organization  and  procedure  for  the  guidance  of  future  tribunals  of  a 
similar  nature.  But,  perhaps,  its  highest  significance  is  the  demon- 
stration of  the  superiority  of  r  permanent  tribunal  over  merely  special 
and  temporary  boards  of  arbitration,  with  respect  to  economy  of  time 
and  money  as  well  as  uniformity  of  method  and  procedure. 

A  history  of  the  various  plans  for  the  realization  of  international 
justice  shows  the  gradual  evolution  of  clearer  and  less  objectionable 
conceptions  upon  this  subject.  Those  of  Bluntschli,  Lorimer.  David 
IDudley  Field,  and  Leone  Levi  have  been  long  before  the  public,  each 
containing  useful  sugge<    ons,  hut  impracticable  as  a  whole.     Certain 


I 


14 


THE    HAGUE    CONFERENCE  OF    1899 


rules  for  the  regulation  of  the  procedure  of  international  tribunals  of 
arbitration  were  discussed  by  the  Institute  of  International  Law  at  its 
sessions  at  Geneva  in  1874  and  at  The  Hague  in  1875,  and  provisional 
rules  were  finally  approved.  Another  set  of  rules  was  proposed  by  a 
select  committee  of  lawyers  at  the  Universal  Peace  Congress,  held  in 
Chicago  in  1893.  Resolutions  of  a  somewhat  elaborate  nature  were 
adopted  by  the  Interparliamentary  Conference,  composed  of  British 
and  French  members  of  Parliament,  at  Brussels  in  1895.  In  April, 
18%,  the  Bar  Association  of  the  State  of  New  York,  at  a  special  meet- 
ing held  at  Albany,  adopted  a  plan  for  the  establishment  of  a  per- 
manent international  tribunal.  The  almost  continuous  movement  of 
thought  in  this  direction  since  1832  has  been  inteiTupted  only  by  the 
late  Spanish-Ainerican  war. 

A  careful  review  of  all  the  plans  for  an  international  tribunal  that 
have  thus  far  been  proposed  makes  it  evident  that  they  have  failed 
from  two  causes:  (1)  Too  great  elaboration  and  complication,  involv- 
ing too  many  debatable  questions ;  and  (2)  the  absence  of  an  oppor- 
tune occasion  for  proposing  them  to  an  authoritative  international 
body. 

The  plan  that  is  to  prove  successful,  if  a  sufficient  number  of  sov- 
ereign States  be  disposed  to  adopt  any  plan  whatsoever  for  an  inter- 
national tribunal,  must  combine  an  adequate  grasp  of  the  conditions 
with  an  extreme  simplicity,  leaving  much  to  the  cooperation  of  others 
and  the  development  of  the  future. 

The  introduction  of  a  brief  resolution  at  an  opportune  moment  in 
the  proposed  Peace  Conference  would  at  least  place  the  United  States 
on  record  as  the  friend  and  promoter  of  i)eace.  The  revolution  hereto 
ajipendcd'  i-  intended  to  embody  in  the  briefest  and  simplest  manner 
the  most  useful  suggestions  of  all  the  plans  ])ropose(l. 

[.Imtrx   B] 

[•LAN    FOR    .\N    INTEKN.^TIONAL    TKIIlfNAL 

Rrsnkrd.  That  in  order  to  aid  in  the  prevention  of  armed  conflicts 
by  iKicitic  meanv.  the  rcprc^tntativcs  of  the  sovereign  Powers  as- 
sembled together  in  this  Conference  be.  and  hereby  are.  requested  to 
propose  t(^  their  rc>pecti\e  C.oveninients  a  series  of  negotiations  for 
the  adoption  of  a  general  treaty  having  for  its  object  the  following 


i.^nnex  B.  infra. 


INSTRUCTIONS  TO  THE  AMERICAN  DELEGATION 


15 


plan,  with  such  modifications  as  may  be  essential  to  secure  the  adhe- 
sion of  at  least  nine  sovereign  Powers. 

1.  The  tribunal  shall  be  composed  of  judges  chosen  on  account  of 
their  personal  integrity  and  learning  in  international  law  by  a  majority 
of  the  members  of  the  highest  court  now  existing  in  each  of  the 
adhering  States,  one  from  each  sovereign  State  participating  in  the 
treaty,  and  shall  hold  office  until  their  successors  are  appointed  by  the 
same  body. 

2.  The  tribunal  shall  meet  for  organization  at  a  time  and  place  to  be 
agreed  upon  by  the  several  Governments,  but  not  later  than  six  months 
after  the  general  treaty  shall  be  ratified  by  nine  Powers,  and  shall 
organize  itself  by  the  appointment  of  a  permanent  clerk  and  such 
other  officers  as  may  be  found  necessary,  but  without  conferring  any 
distinction  upon  its  own  members.  The  tribunal  shall  be  empowered 
to  fix  its  place  of  sessions  and  to  change  the  same  from  time  to  time 
as  the  interests  of  justice  or  the  convenience  of  the  litigants  may  seem 
to  require,  and  fix  its  own  rules  of  procedure. 

3.  The  contracting  nations  will  mutually  agree  to  submit  to  the  in- 
ternational tribunal  all  questions  of  disagreement  between  them,  ex- 
cepting such  as  may  relate  to  or  involve  their  political  independence 
or  territorial  integrity.  Qne>tions  of  disagreement,  with  the  aforesaid 
exceptions,  arising  between  an  adherent  State  and  a  non-adhering 
State,  or  between  two  sovereign  States  not  adherent  to  the  treaty, 
may,  with  the  consent  of  both  (jarties  in  dispute,  be  submitted  to  the 
international  tribunal  for  adjudication,  upon  the  cundition  expressed 
in  Article  6. 

4.  The  tribunal  shall  be  of  a  permanent  character  and  shall  be 
always  open  for  the  filing  of  cases  and  counter-cases,  either  by  the  con- 
tracting nations  or  by  others  that  may  choose  to  submit  them,  and  all 
cases  antl  counter-cases,  vvitli  the  testimony  and  arguments  by  which 
they  are  to  be  supported  or  answered,  are  to  be  in  writing.  All  cas;s, 
counter-cases,  evidence,  arguments,  and  opinions  expressing  judgment 
are  to  be  accessible,  after  a  decision  is  rendered,  to  all  who  desire  to 
pay  the  necessary  charges  for  transcription. 

.^.  .A  bench  of  judges  ffir  each  particular  case  shall  consist  of  not 
less  than  three  nor  more  than  seven,  as  may  be  deemed  expedient.  a[>- 
pointed  by  the  unanimous  consent  of  the  tribunal,  and  not  to  include 
a  member  who  is  either  a  native,  subject,  or  citizen  of  the  State  whose 
interests  are  in  litigation  in  that  case. 


16 


THE    HAGUE   CONFERENCE   OF    1899 


6.  The  general  expenses  of  the  tribunal  are  to  be  divided  equally 
between  the  adherent  Powers,  but  those  arising  from  each  particular 
case  shall  be  provided  for  as  may  be  directed  by  the  tribunal.  The 
presentation  of  a  case  wherein  one  or  both  of  the  parties  may  be  a 
non-adherent  State  shall  be  admitted  only  upon  condition  of  a  mutual 
agreement  that  the  State  against  which  judgment  may  be  found  shall 
pay,  in  addition  to  the  judgment,  a  sum  to  be  fixed  by  the  tribunal  for 
the  expenses  of  the  adjudication. 

7.  Every  litigant  before  the  international  tribunal  shall  have  the 
right  to  make  an  appeal  for  reexamination  of  a  case  within  three 
months  after  notification  of  the  decision,  upon  presentation  of  evidence 
that  the  judgment  contains  a  substantial  error  of  fact  or  law. 

8.  This  treaty  shall  become  operative  when  nine  sovereign  States, 
whereof  at  least  six  shall  have  taken  part  in  the  Conference  of  The 
Hague,  shall  have  ratifie'*    ts  provisions. 


w:^7?sr< 


J 


^^•^*am 


REPORT  TO  THE  SECRETARY  OF  STATE  OF  THE  DELEGATES  TO 
THE  FIRST  HAGUE  CONFERENCE' 

The  Hague,  July  j  /,  1899. 
The  Honorable  John  Hay, 
Secretary  of  State. 

Sir:  On  May  17,  1899,  the  American  Commission  to  the  Peace  Con- 
ference of  The  Hague  met  for  the  first  time  at  the  house  of  the 
American  Minister,  the  Honorable  Stanford  Newel,  the  members,  in 
the  order  named  in  the  instructions  from  the  State  Department  being 
Andrew  D.  White,  Seth  Low,  Stanford  Newel,  Captain  Alfred  T. 
Mahan  of  the  United  States  Navy,  Captain  William  Crozier  ot  the 
United  States  Army,  and  Frederick  W.  Holls,  secretary.  Mr.  White 
was  elected  president,  and  the  instructions  from  the  Department  of 
State  were  read. 

On  the  following  day  the  Conference  was  opened  at  the  palace 
known  as  "The  House  in  the  Wood,"  and  delegates  from  the  follow- 
ing countries,  twenty-six  in  number,  were  found  to  be  present :   Ger- 

any,  the  United  States  of  America,  Austria-Hungary,  Belgium, 
China,  Denmark,  Spain,  France,  Great  Britain  and  Ireland,  Greece, 
Italy.  Japan,  Luxemburg.  Mexico,  Montenegro,  the  Netherlands, 
Persia,  Portugal,  Roumania.  Russia,  Servia,  Siam,  Sweden  and  Nor- 
way. Switzerland,  Turkey,  and  Bulgaria. 

The  opening  meeting  was  occupied  mainly  by  proceedings  of  a  cere- 
monial nature,  including  a  telegram  to  the  Emperor  of  Russia,  and  a 
message  of  thanks  to  the  Queen  of  the  Netherlands,  with  speeches 
by  Mr.  de  Beaufort,  the  Netherlands  Minister  of  Foreign  Affairs,  and 
Mr.  de  Sta.il,  representing  Russia. 

At  the  second  meeting  a  permanent  organization  of  the  Conference 
wa  efFecteil.  Mr.  de  Staal  being  cho'ien  president,  Mr,  de  Beaufort 
honorary  president,  and   Mr.   van  Karnebeek.  a  former  Netherlands 


'F,}rei.jH  Rfhliotis  of  the  I'mtcd  States.  1899,  p.  51,?:  Hdlls,  op.  cit..  p.  477; 
Scott,  ii[>.  ctt.,  vol.  ii,  p.  17.  The  KciiiTal  report  here  printed  is  followed  by  sepa- 
rate report-;  of  different  delei^iite'^  on  particular  siibjecf;. 


18 


THE    HAGUE    CONFERENCE   OF    1899 


A  sufficient  number  of 


Minister  of  Foreign  Affairs,  vice-president, 
secretaries  was  also  named. 

The  work  of  the  Conference  was  next  laid  out  with  reference  to  the 
points  stated  in  the  xMouravieff  circular  of  December  30,  1898,  and  di- 
vided between  three  great  committees  as  follows : 

The  first  of  these  committees  was  upon  the  limitation  of  armaments 
and  war  budgets,  the  interdiction  or  discouragement  of  sundry  arms 
and  explosives  which  had  been  or  might  be  hereafter  invented,  and 
the  limitation  of  the  use  of  sundry  explosives,  projectiles,  and  methods 
of  (lestruciion,  both  on  land  and  sea,  as  contained  m  Articles  1  to  4 
of  the  Mouravieff  circular. 

The  second  great  committee  had  reference  to  the  extension  of  the 
Ciencva  Red  Cross  rules  of  1S64  and  1868  to  maritime  warfare,  and 
the  revision  of  the  Brussels  Declaration  of  1874  concerning  the  laws 
and  custunK  of   war,  as  contained  in  Articles  5  to   7  of  the  same 

circular.  ,  •       •  j 

T'-  ♦bird  committee  had  as  its  subjects,  mediation,  arbitration,  and 
other  r..ethods  of  preventing  armed  conflicts  between  nations,  as  re- 
ferre  !  to  in  Article  8  of  the  Mouravieflf  circular. 

The  American  members  of  these  three  committees  were  as  follows : 
of  the  first  committee.  Messrs.  White.  Mahan.  Crozier ;  of  the  second 
committee,  Messrs.  White,  Newel,  Mahan,  Crozier;  of  the  third  com- 
mittee. Messrs.  White.  Low  and  Holls. 

In  aid  of  these  three  main  committees  subcommittees  were  ap- 
pointed as  follows: 

The  first  committee  referred  questions  of  a  military  nature  to  the 
first  sul.oominittec.  of  which  Captain  Crozier  was  a  member,  and 
questions  of  a  naval  nature  to  the  second  subcomriittee,  of  which 
Captain  Mahan  was  a  member. 

The  second  committee  referred  Articles  5  and  6.  having  ref.  rence 
tr,  the  exun-ion  of  the  fieneva  ruU'<  to  maritime  warfare,  to  a  sub- 
committee of  which  Captain  Mahan  was  a  member,  and  Article  7,  con- 
oernint,'  the  revision  of  the  laws  and  customs  of  war.  to  a  subcom- 
mittee of  which  Captain  Crozier  was  a  member. 

The  third  committee  appointed  a  <inf;le  subcommittee  of  "ex.imma- 
tion."  whose  pun>ose  was  to  scrutinize  plans,  projects,  and  suRRestions 
of  arbitration,  and  of  this  committee    Mr.  Holls  was  a  member. 

The  main  steps  in  the  progress  of  the  work  wrousbt  by  these  agen- 
cies, and  llie  oart  taken  in  it  bv  (uir  commission  arc  detailed  in  the 


■M-'^> 


REPORT  OF  THE  AMERICAN  DELEGATION 


19 


accomparying  reports,  made  to  the  American  commission  by  the 
American  members  of  the  three  committees  of  the  Conference.  It 
will  be  seen  from  these  that  some  of  the  most  important  features 
finally  adopted  were  the  result  of  American  propwsals  and  suggestions. 
As  to  tliat  portion  of  the  work  of  the  first  committee  of  the  Con- 
ference which  concerned  the  non-augmentation  of  armies,  navies,  and 
war  budgets  for  a  fixed  term,  and  the  study  of  the  means  for  eventually 
diminishing  armies  and  war  budgets,  namely.  Article  1,  the  circum- 
stances of  the  United  States  being  so  different  from  those  which  obtain 
in  other  parts  of  the  world,  and  especially  in  Europe,  we  thought  it 
best,  under  our  instructions,  to  abstain  from  taking  any  active  part. 
In  this  connection  the  following  declaration  was  made : 


The  delegation  of  the  United  State>  of  America  has  concurred 
in  the  conclusions  upon  the  first  clause  of  the  Russian  lettei  of 
December  30,  189<S,  presented  to  the  Conference  by  the  first  com- 
mission, namely,  that  the  projiosals  of  the  Russian  representatives 
for  fixing  the  amounts  of  effective  forces  and  of  budgets,  military 
and  naval,  for  periods  of  five  and  three  years,  can  not  now  be 
accepted,  and  that  a  more  profound  study  upon  the  part  of  each 
State  concerned  is  to  be  desired.  But,  while  thus  supporting  what 
seenicd  to  be  the  only  practicable  solution  of  a  question  submitted 
to  the  Conference  by  the  Russian  letter,  the  delegation  wishes  to 
place  upon  the  record  that  the  United  States,  in  so  doing,  does 
not  express  any  opinion  as  to  the  course  to  be  taken  by  the  States 
of  Europe. 

This  declaration  is  not  meant  to  indicate  mere  indifference  to  a 
difficult  problem,  because  it  does  not  affect  the  United  States  im- 
mediately, but  expresses  a  determination  to  refrain  from  enuncia- 
ting opinions  upon  matters  into  which,  as  concerning  Europe  alone, 
tlie  United  States  has  no  claim  to  enter.  The  words  drawn  up 
by  M.  l')Ourgeois.  and  adopted  by  the  first  commission,  received 
also  the  hearty  concurrence  of  this  delegation,  because  in  so  doing 
it  exj^resses  the  cordial  interest  and  sympathy  with  which  the 
United  States,  while  carefully  abstaining  from  anything  that  might 
resemble  interference,  regards  all  movements  that  arc  thought  to 
tend  to  tile  welfare  of  Europe.  The  military  and  naval  arma- 
ments of  the  United  Stales  are  at  present  so  small,  relatively  to 
the  extent  of  territory  and  to  the  number  of  the  population,  as 
we'l  as  in  comparison  with  those  of  other  nations,  that  their  size 
can  entail  no  additional  burden  of  expense  upon  the  latter,  nor 
can  even  form  a  subject  for  profitable  mutual  discussion. 


20 


THK    IIAGDE    fONFEKENCE  OF    1899 


As  to  that  portion  of  the  work  of  the  tirsi  committee  which  con- 
cerned the  limitations  of  invention  and  the  interdiction  of  sundry  arms, 
explosives,  mechanical  agencies,  and  methods  heretofore  in  use  or 
wliicli  might  possibly  be  hereafter  adopted,  as  regards  warfare  l)y  land 
and  sea,  namely.  Articles  2,  3,  and  4,  the  whole  matter  having  been 
divided  between  Captains  Mahan  and  Crozier  so  far  as  technical  dis- 
cussion was  concerned,  the  reports  made  by  them  from  time  to  time 
to  the  American  commission  formed  the  basis  of  its  tinal  action  on 
these  subjects  in  the  first  committee  and  in  the  Conference  at  large. 

The  American  comtiiis.>ion  approached  the  subject  of  the  limitation 
of  invention  with  much  doubt.  They  had  been  justly  reminded  in 
their  instructions  of  the  fact  that  by  the  progress  of  invention,  as  ap- 
plied to  the  agencies  of  war,  the  frequency,  and,  indeed,  the  exhausting 
character  of  war  had  been,  as  a  rule,  diminished  rather  than  increased. 
As  to  details  regarding  missiles  and  methods,  technical  and  other  difW- 
culties  arose  which  obliged  us  eventually,  as  will  be  seen,  to  put  our- 
selves on  record  in  opposition  to  the  large  majority  of  our  colleagues 
from  other  nations  on  sundry  points.  While  agreeing  with  them  most 
earnestly  as  to  the  end  to  be  attained,  the  difference  in  regard  to 
some  details  was  irreconcilable.  We  feared  falling  into  evils  worse 
than  those  from  which  we  >ought  to  escape.  The  annexed  reports  of 
Captains  Mahan  and  Crozier  will  exhibit  very  fully  these  difficulties 
and  the  decisions  thence  arising. 

A>  to  the  work  of  the  second  great  committee  of  the  Conference, 
the  matters  concerned  in  Articles  3  and  6,  which  related  to  the  exten- 
sion to  maritime  warfare  of  the  Red  Cross  niles  regarding  care  for 
the  wounded  adopted  in  the  Geneva  Conventions  of  1864  and  1868, 
were,  as  already  stated,  referred,  as  regards  the  discussion  of  technical 
questions  in  the  committee  and  subcommittee,  to  Captain  Mahan,  and 
the  matters  concerned  in  Article  7,  on  the  revision  of  the  laws  and 
customs  of  war,  were  referred  to  Captain  Crozier.  On  these  technical 
questions  Cajitains  Mahan  and  Crazier  reported  from  time  to  time  to 
tlie  .\merican  commission,  and  these  reports,  having  been  discussed 
both  in  regard  to  tlieir  general  and  special  bearings,  became  the  basis 
of  the  tnial  .iction  of  the  entire  .\merican  commission,  both  in  the 
second  committee  and  in  the  Conference  at  large. 

As  to  the  tirst  of  these  subjects,  the  extension  of  the  Geneva  Red 
Cros-  rules  to  maritime  warfare,  while  the  general  purpose  of  the 
articles  a.lopted  elicited  the  especial  sympathy  of  the  American  com- 


RF.POKT   OF   THE    AMERICAN    tlEU'.f.ATION 


21 


mission,  a  iicKlcct  of  what  hetnicd  to  us  a  iiucstioii  of  almost  vital  im- 
portance, namely,  the  determination  of  the  status  of  men  picked  up 
by  the  hospital  ships  of  neutral  States  or  hy  other  neutral  vessels,  ha* 
led  us  to  refrain  from  signinfj  the  convention  prepared  by  the  Confer- 
ence touching  this  subject,  and  to  submit  the  matter  with  full  explana- 
tion  to  the  Department  of  State  for  decision. 

As  to  the  second  of  these  subjects,  the  revision  of  the  laws  and  cus- 
toms of  war,  though  the  code  adoi)tcd  and  embotlied  in  the  third  con- 
vention commends  our  approval,  it  is  of  such  extent  and  iniiwrtance 
as  to  appear  to  need  detailed  consideration  in  connection  with  similar 
laws  and  customs  already  iti  force  in  the  Army  of  ihe  United  States, 
and  it  was  thought  l)est  therefore  to  withhold  our  signature  from  this 
convention  also  and  to  refer  it  to  the  State  Department  with  a  rec- 
ommendation that  it  be  there  submitted  to  the  proper  authorities  for 
special  examination  and  signed,  uiiles-  such  examination  shall  disclose 
imperfections  not  apparent  to  the  commission. 

As  to  the  third  great  committee  of  the  Conference,  that  which  had 
in  charge  the  matters  concerned  in  Article  ?>  of  the  Russian  circular 
with  reference  to  good  ofiice^,  mediation,  and  arbitration,  the  proceed- 
ings of  the  subcommittee  above  referred  to  became  especially  important. 

While  much  interest  was  shown  in  the  discussions  of  the  first  of 
the  great  committees  of  the  Conference,  and  still  more  in  those  of  the 
second,  the  main  interest  of  the  whole  body  centered  more  and  more 
in  *he  third.  It  was  felt  that  a  thorough  provision  for  arbitration  and 
its  cognate  subjects  is  the  logical  precursor  of  the  limitation  of  stand- 
ing armies  and  budgets,  and  that  the  true  logical  order  is  first  arbi- 
tration and  then  disarmament. 

As  to  subsidiary  agencies,  while  our  commission  contributed  much 
to  the  general  work  regarding  good  offices  and  mediation  it  contri- 
buted cntirclv.  through  Mr.  I  lolls,  the  plan  for  "special  mediation." 
which  was  adopted  unanimously,  first  by  the  committee  and  finally  by 
the  Conference. 

.\s  to  the  plan  for  "international  commissions  of  inquiry,"  which 
emanated  from  the  Russian  delegation,  our  commission  acknowl- 
edged its  probable  value  and  aided  it  elaborating  it.  but  added  to  the 
safeguards  against  any  possible  abuse  of  it,  as  concerns  the  United 
States,  by  our  declaration  of  July  25,  to  be  mentioned  hereafter. 

The  functions  of  >uch  commission  are  strictly  limited  to  the  ascer- 
tai—ient  of  facts,  and  it  is  hoped  that  both  by  giving  time  for  passions 


22. 


THE    HAGUF.   CONFERENCE  OF    1899 


to  subside  and  by  substituting  truth  for  rumor,  they  may  prove  useful 
at  times  in  sfttlinjj  intcmational  disputes.  The  commissions  of  inquiry 
may  also  form  a  useful  auxiliary  both  in  the  exercise  of  good  offices 
and  tti  arbitration. 

As  to  the  next  miin  sul)jcct,  the  most  important  of  all  under  con- 
sideration by  tiie  third  committee— the  plan  of  a  permanent  court  or 
tribunal  Avo  were  also  able,  in  accordance  with  our  instruciions,  to 
m.ikc  contributior.s  which  we  believe  will  aid  in  giving  such  a  court 
dij;nity  and  etTiciency. 

On  the  assembling  of  the  Conference  the  feeling  regarding  the  es- 
tablishment of  an  actual  permanent  tribunal  was  evidently  chaotic, 
with  little  or  no  apparent  tendency  to  crystallize  into  any  satisfactory 
institution.  The  very  elaborate  and  in  the  main  excellent  proposals 
relating  to  procedure  before  special  and  temporary  tribunals,  which 
were  presented  by  the  Russian  delegation,  did  not  at  first  contemplate 
the  establishment  of  any  such  permanent  institution.  The  American 
plan  contained  a  carefully  devised  project  for  such  a  tribunal,  which 
diflfered  from  that  adopted  mainly  in  contemplating  a  tribunal  capable 
of  meeting  in  full  bench  and  permanent  in  the  exercise  of  its  functions, 
like  tht  Supreme  Court  of  the  United  States,  instead  of  a  court  like 
the  supreme  court  of  the  State  of  New  York,  which  never  sits  as  a 
whole,  but  whose  members  sit  from  time  to  time  singly  or  in  groups, 
as  occasion  may  demand.  The  Court  of  Arbitration  provided  for 
resembles  in  many  features  the  supreme  court  of  the  State  of  New- 
York  and  courts  of  unlimited  original  jurisdiction  in  various  other 
States. 

In  order  to  make  this  system  effective  a  Council  was  estab- 
lished, composed  of  the  diplomatic  representatives  of  the  various 
Powers  at  The  Hague,  and  presided  over  by  the  Netherlands  Minister 
of  Foreign  Affairs,  which  should  have  charge  of  the  central  office  of 
tlie  proposed  Court,  of  all  administrative  details,  and  of  the  means 
and  machinery  for  speedily  calling  a  proper  bench  of  judges  together, 
and  for  netting  the  Court  in  acti.  .11.  The  reasons  for  our  cooper.ation  in 
ni.-iking  this  plan  will  be  found  in  the  .accompanying  report.  This  com- 
promise, involving  the  creation  of  a  council  and  the  selection  of  judges 
not  to  he  in  -cssiini  save  when  actually  required  for  intoniational  liti- 
gation, was  proposed  bv  C.reat  Rritain.  and  the  feature  of  it  which 
pi  jvidcd  for  the  admission  of  the  Netherlands  with  its  Minister  of 
Foreign   AfTairs  as   President   of  the  Council,   was   proposed  by  the 


REPORT  OF  THE  AMKHICAN   DKLEOATION 


23 


American  commission.  The  nations  generally  joined  in  perfecting 
other  details.  It  may  truthfull  e  called,  therefore,  the  plan  of  the 
Ciinfcrcnco. 

As  to  the  revision  of  the  decisions  hy  the  trilnnial  in  case  of  the  dis- 
covery of  new  facts,  a  subject  on  which  our  instructions  were  explicit, 
we  were  able,  in  the  face  of  determined  and  prolonged  opposition,  to 
secure  recognition  in  the  code  of  jjrocedure  for  the  American  view. 

As  regards  the  procedure  to  be  adopted  in  the  International  Court 
thus  provided,  the  main  features  having  been  proposed  by  the  Russian 
delegation,  various  modifications  were  made  by  other  delegations,  in- 
cluding our  own.  ( )ur  commission  was  careful  to  see  that  in  thi>  code 
there  should  be  nothing  which  could  put  those  conversant  more  espe- 
cially with  British  and  American  common  law  and  equity  at  a  dis- 
advantage. To  sundry  important  features  proposed  by  other  Powers 
our  own  commission  gave  hearty  support.  This  was  the  case 
especially  with  Article  27  proposed  by  France.  It  provides  a  means, 
through  the  agency  of  the  Powers  generally,  for  calling  the  attention 
of  any  nations  apparently  drifting  into  war  to  the  fact  that  the  tribunal 
i^  ready  to  hear  their  contention.  In  this  i)rovision,  broadly  inter- 
preted, we  acquiesced,  but  endeavored  to  secure  a  clause  limiting  to 
suitable  circumstances  the  "iluty"  imposed  by  the  article.  Great  oppo- 
sition being  shown  to  such  an  amendment  as  unduly  weakening  the 
article,  we  decided  to  present  a  declaration  that  nothing  contained  in 
the  convention  should  mak'.  it  the  duty  of  the  United  States  to  intrude 
in  or  become  entangled  with  European  political  questions  or  matters 
of  internal  administration  or  to  relinquish  the  traditional  attitude  of 
our  nation  toward  purely  .American  questions.  This  declaration  was 
received  without  objection  by  the  Conference  in  full  and  open  session. 

A>-  to  the  results  thus  obtained  as  a  whole  regarding  arbitration,  in 
view  of  all  the  circumstances  and  considerations  revealed  during  the 
ses^ions  of  the  Conference,  it  is  our  opinion  that  the  "Plan  for  the 
pacific  settlement  of  international  disjnites,"  which  was  adopted  by 
the  Conference,  is  better  than  that  presented  by  any  one  nation.  We 
believe  that,  though  it  will  doubtle-^s  be  found  imperfect  and  will 
require  modification  as  times  goes  on,  it  will  form  a  thoroughly  prac- 
tical beginning,  it  will  produce  valuable  remits  from  the  outset,  and 
it  will  be  the  germ  out  of  which  a  better  and  better  system  will  be 
i^radually  evolved. 

.'\s  to  the  question  betv/een  compulsory  and  voluntary  arbitration 


THK    HM.IK    lONHKINlK   OK 


\m> 


it  w.iN  clearly  seen    liefure  we  lia<l  been  long  in  session    that  general 
comi)ul>ury    arl.itratum    of    (|uivtioii>    really    likely    to    produce    war 
could  not  be  obtained ;  in  fact  lliat  not  one  of  the  nations  represented 
at  the  Conference  was  willing'  to  enibark  in  it.  so  far  as  the  more  seri- 
ous (luestions  were  concerned.     Kven  as  to  the  questions  of  less  mo- 
ment, It  was  found  to  be  inijKi-sible  to  secure  agreement  except  upon  a 
voluntary  basis.     We  ourselves  felt  obliged  to  insist  upon  the  omission 
from  the  Russian  list  of  proi)ose(l  subjects  for  compulsory  arbitration 
international  conventions  relating  to  rivers,  to  interoceanic  canals,  and 
to   monetary   matters,      l^ven   as   so  amended,   the  plan    was  not   ac- 
ceptable to  all.     As  a  conseciuence.  the  convention  prepared  by  the 
Conference  provides  for  voluntary  arbitration  only.     It  remains  for 
public    opinion    to   make   this    system    e-^ective.     .Ss    questions    arise 
threatening  resort  to  arms  it  may  well  be  hoi>ed  that  public  opinion  in 
the  nations  concerned,  seeing  in  this  great  international  court  a  means 
of  escape  from  the  increasing  horrors  of  war.  will  insist  more  and  more 
that  the  questions  at  issue  be  referred  to  it.   As  time  goes  on  such  refer- 
ence will  probably  nu.re  and  more  seem  to  the  world  at  large  natural 
and  normal,  and  we  may  hope  that  recourse  to  the  tribunal  will  finally, 
in  the  great  majority  of  serious  differences  between  nation^^.  become  a 
regular  means  of  avoiding  the  resort  to  arms.    There  will  also  be  an- 
other eflfect  worthy  of  consideration.     This  is  the  building  up  of  a  lK)dy 
of  international  law  growing  out  of  the  decisions  handed  down  by  the 
judges.     The  procedure  of  the  tribunal  requires  that  reasons  for  such 
decisions  shall  be  eiven.  and  these  decisions  and  reasons  can  hardly 
fail  to  form  addii     ns  of  especi.il  value  to  international  jurisprudence. 
It  now  lemains  to  report  the  proceedings  of  the  Conference,  as  well 
as  our  own  action,  regarding  the  question  of  the  immunity  of  private 
property  not  contraband   from   seizure  on  the  seas  in  time  of  war. 
From  the  very  beginning  of  our  sessions  it  w?s  constantly  insisted 
by  leading  representatives  from  nearly  all  the  great  Powers  that  the 
action  of  the  Conference  should  l>e  strictly  limited  to  the  matters  speci- 
fied in  the  Russian  circular  of  December  .W.  1808.  and  referred  to  in 
the  invitation  emanating  from  the  Netherlands   Ministry  of   Foreign 

Affairs. 

Many  reasons  for  s„ch  a  limitation  were  obvious.  The  membeis 
of  the  Conference  were  from  the  beginning  deluged  with  l>ooks. 
IKimplilets.  circulars,  newsjai-ers,  broadside-,  and  private  letters  on  a 
multitude  of  burning  ([uestions  in  various  parts  of  the  world.     Con- 


m.lliKT  (iK  TIIK  AMKHITAM  I)1.LK(;ATI(iN 


25 


.   1 


^idcralilc  niiiiiltcrs  (if  nii'ti  atid  udiiii'ii  ilt-viitt'd  to  iir^jinn  i1r'>c  (|iic>- 
tioiis  came  to  Tlii'  Ha^,aK'  (»r  fjavc  notice  of  tlicir  coining,'. 

It  wa-i  very  j;etU'ral!>  l)clicvc(l  in  tlic  (  oiifcrencc  that  the  adniissioii 
of  any  (|iic^tion  not  strictly  within  tlie  hniits  proin^cd  hy  tlic  two  cir- 
culars ahovc  mentioned  would  open  the  door  to  all  the^^e  [>roposals 
aUive  referred  to,  anil  that  this  tiii;,dit  lead  to  endless  confusion,  to 
heat"(l  dehate,  [lerhaps  even  to  the  wreck  of  the  (onference  aTid  con- 
se(|uently  to  a  lon^  i)osti)onenient  of  the  ol)ject>  which  Ixith  those  who 
summoned  it  and  tho^e  who  entered  il  had  directlv  in  view. 

It  was  at  first  held  liy  very  many  mcmher^  of  the  Conference  that 
imder  the  |)ro|>er  a])plicatioii  of  the  ahove  ride  the  proiM)sal  (  ')  made 
hy  the  Ainericiiii  commission  could  not  he  received.  It  reipiired  much 
and  earnest  ar),'uinent  on  our  part  to  chaiifje  this  view,  but  finally  the 
memorial  from  our  commission,  which  stated  fully  the  historical  and 
.ictual  relation  of  the  liiited  States  to  the  wlvle  subject,  was  received, 
referred  to  the  appropriate  committee.  ;iiid  tiuallv  hrou;,dit  hy  it  be- 
fore the  Conference. 

In  that  body  it  was  listened  to  with  close  attention  and  the  spt'ech 
of  the  chairman  of  the  committee,  who  is  the  eminent  jiresident  of 
the  Venezuelan  arbitration  tribunal  now  in  session  at  Paris,  paid 
a  hearty  tribute  to  the  historical  adhesion  of  the  L'nited  States  to  the 
Kreat  principle  concerned.  He  then  moved  that  the  subject  be  referred 
to  a  future  Conference.  This  motion  we  accepted  and  seconded, 
taking;  occasion  in  doinj,'  so  to  restate  the  .\merican  doctrine  on  the 
subject,  with  its  claims  on  all  the  nations  re])resented  at  the  Conference. 

The  commission  was  thus,  as  we  believe,  faithful  to  one  of  the  old- 
est of  .American  trailitions,  and  was  able  at  least  to  keep  the  subject 
before  the  world.  The  way  it  paved  also  for  a  future  careful  consid- 
eration of  the  subject  in  all  its  bearings  and  under  more  propitious 
circumstances. 

The  conclusion  of  the  Peace  Conference  at  The  Haprue  tf>ok  com- 
plete and  definite  shape  in  the  Final  .\ct  laid  before  the  delcpates 
on  July  2r>.  for  their  sjijfnature.  This  act  embodied  three  conven- 
tions, three  declarations,  and  seven  resolutions,  as  follows: 

First.  .A  Convention  for  the  pacific  settlement  of  international 
dis()utes.  This  was  signed  by  sixteen  delectations,  as  follow- :  Rel- 
tifinm.  Denmark,  Spain,  l'nited  St.ites  of  .-\nierica,  Mexico,  France, 
C.rcece,  Montenepro,  the  \ethcrlands,  Persia,  Portugal,  Roumania, 
Russia.  Siam,  Sweden  and  Norway,  and  Bulgaria.  There  were  [sir] 
adioined  to  the  sienatures  of  the  United  States  delegation  a  reference 


26 


TIIK    IlAflUK    CDNFEKENrE   OF    1899 


ti)  our  Ucclaratioii  al)ove   retcrrcd  Id,  matic  in  open  Coiiftrence  on 
July  25,  ami  rccDrdcil  iii  Ihc  pn)citiliiij{!   nl  that  day. 

Sccoiul.  A  Cijnvciilion  concerning  the  laws  ami  cusi  ns  of  war  on 
land  Ihi-.  was  signed  by  fifteen  delegations,  as  follows;  HelKiuni, 
Denmark.  Spain,  Mexico,  I'rance,  Greece,  Montenegro,  the  Nether- 
lands, Persia.  Portugal,  Rouniania,  Russia,  Siam,  Sweden  and  Nor- 
way, and  Uulgaria. 

The  I'nitcd  States  delegation  refer  the  matter  to  the  (iovernment 
at  Washington,  with  the  recommendation  that  it  l>e  there  signed. 

Third.  .V  Ci^nvention  for  the  ailaptation  to  maritime  warfare  of  the 
principles  of  the  Geneva  Conference  of  1864  This  was  signed  hy  fif- 
teen delegation^,  as  follows:  llelgium.  Denmark,  Spain,  Mi\uo, 
France,  tireeoe,  Montenegro,  the  Netherlands,  Persia,  Portugal,  Rou- 
mania,  Russia,  Siani,  Sweden  and  Norway,  and  Uulgaria. 

The  L'nited  States  representatives  refer  it,  without  recommendation, 
to  the  Government  at  Washington. 

The  three  Declaratioii>  were  as  follows: 

I'irst.  .'\  Declaration  prohibiting  the  throwing  of  projectiles  and 
exi)losive^  from  balloons  or  by  other  new  analogous  means,  such  pnhi- 
bition  to  t)e  effective  during  five  years.  This  was  signed  by  seventeen 
delegations,  as  follows:  Helgiiim,  DciiniarK,  Spain,  the  United  States 
of  .\mcrica,  Mexico.  I'rance.  Greece.  Montenegro,  the  Netherlands. 
Persia.  Portugal,  Rouniania,  Russia,  Siam,  Sweden  and  Norway.  Tur- 
key, and  Bulgaria. 

Second  A  Declaration  prohibiting  the  use  of  projectiles  having 
as  their  sole  object  the  diUusion  of  asplu  xiating  nr  ddoterious  gases. 
Thi-.  for  reasons  given  in  the  .iccompanying  liocuir.cnts,  the  .\nici 
can  delegation  did  not  sign.  It  was  signed  hy  sixteen  delegations, 
as  follows :  P.elgium,  Denmark,  Spain,  Mexico,  France.  Greece.  Mon- 
tenegro, the  Netherlands.  Persia.  Portng.il,  Roumania,  Russia.  Siam, 
Sweden  and  Norway,  Turkey,  and  P.ulc;aria. 

Third.  .-X  Declaration  prohibiting  the  ii-e  of  bullets  which  expand  or 
flatten  easily  in  the  hum:in  Ixxly.  as  illn-t  rated  by  certain  given  de- 
tails of  construction.  This,  for  technical  reasons  also  fully  stated  in 
the  report,  the  .American  deleg.ition  di<l  not  sign.  It  was  signed  by 
fifteen  delegations,  as  follows:  Helgiuni,  Denmark.  Spain,  Mexico. 
France,  Greece.  Montenegro,  the  Netherlands,  Persia.  Roumania, 
Russia.  Siam.  Sweden  and  Norway,  Turkey,  and  Bulgaria. 

The  seven  resolutions  were  as  follows: 


HrPOBT  DK   rHK  AMERICAN   DtLFilATION 


First.  A  resolution  that  the  limitatiDn  of  the  mihtary  char^eH  whici) 
at  present  so  oppress  the  world  is  greatly  to  be  liesired,  for  the  increase 
uf  the  material  and  mural  welfare  of  mankind. 

This  ended  the  action  of  the  Conference  in  relation  to  matters  con- 
<idcred  by  it  upon  their  merits.  In  addition  the  Conference  passed  the 
following  resolutions,  for  all  of  which  the  United  States  delegation 
vcteil,  referring  various  matter-^  to  the  consideration  of  the  I'oweis 
or  to  future  conferences.  L^pon  the  last  five  resolutions  a  few  I'ow- 
cr>  abstained  from  voting' 

The  second  resolution  was  a^  fallows:  The  Conference  taking  into 
ronsideration  the  preliminary  steps  taken  by  the  Federal  Government 
of  Switzerland  fur  the  revision  of  the  Convention  of  Cieneva,  expresses 
the  wish  that  there  should  be  in  a  short  time  a  niccting  of  a  special 
Conference  having  for  its  object  the  revision  of  that  convention. 

This  resolution  was  voted  unanimoudy. 

Third.  The  Conference  expresses  the  wish  that  the  question  of 
rights  and  duties  of  neutrals  should  be  considered  at  another  con- 
ference. 

Fourth.  The  Conference  expresses  the  wish  that  questions  relative 
to  muskets  and  marine  artillery,  -uch  as  have  l)ecn  examined  by  it, 
should  be  made  the  subject  of  study  on  the  part  of  the  Ciovcrnments 
with  a  view  of  arriving  at  an  agreement  concerning  the  adoption  of 
new  ty()es  and  calibers. 

Fifth.  The  Conference  expresses  the  wish  that  the  Ciovernments, 
taking  into  account  all  the  propositions  made  at  this  Conference,  should 
-tudv  the  possibility  of  :in  agreement  concerning  the  limitation  of 
armed  forces  on  land  and  sea  and  of  war  budgets. 

Sixth.  The  Conference  expresses  the  wish  that  a  proposition  having 
for  its  object  the  declaration  of  immunity  of  private  property  in  war 
on  the  high  seas  should  Ik?  referred  for  examination  to  another  con- 
ference. 

Seventh.  The  Conference  expresses  the  wish  that  the  proposition  of 
reg-idating  the  question  of  bombardment  of  ports,  cities,  or  villages  by 
a  naval  force  should  be  referreil  for  examination  t  <  another  con- 
ference. 

It  will  be  observed  that  the  conditimis  upon  which  Powers  not  rej)- 
rescnted  at  the  Conference  can  adhere  to  the  Convention  for  the 
peaceful  regidation  of  international  conflicts  is  lo  "form  the  subject 
of  a  later  agreement  between  the  contracting  Powers."  This  provi- 
si-n  reflects  the  outcome  of  a  three  day-'  debate  in  the  drafting  com- 


28 


THE    HAGUE    CONFERENCE  OF    1899 


miltee  as  to  whether  this  convention  should  be  absolutely  open,  or 
open  only  with  the  consent  of  the  contracting  Powers.  England  and 
haly  strenuously  supported  the  latter  view.  It  soon  became  apparent 
that  under  the  K"i>f  "^  general  propos'tions,  the  committee  was  dis- 
cussing political  questions,  of  great  imjK.r  .;  -e  at  least  to  certain 
Powers.  Under  these  circumstances  th  u  prosvi:t  itivc;=  of  the  L'nited 
States  took  nu  part  in  the  discussion,  1  it  sU)p<.rtt  i  \>y  <eir  vote  the 
view  that  the  convention,  in  its  nature,  v  .  od  recir^ro  .1  obligations; 
;ind  ;.'so  the  conclusion  that  political  .■  e'lcji.  t;ad  !.„•  place  in  the 
Conference,  and  must  be  left  to  be  decided  by  the  c^nipetent  author- 
ities of  the  Powers  represented  there. 

It  is  to  be  regretted  that  this  action  excludes  from  immediate  ad- 
lierence  to  this  convention  our  sister  republics  of  Central  and  South 
America,  with  v'om  the  United  States  is  already  in  similar  relations 
by  the  Pan  .Xmerican  Treat  v.  It  is  honed  that  an  arrangement  will 
soon  be  made  which  will  enable  these  States,  if  they  so  desire,  to  enter 
into  the  same  relations  as  ourselves  with  the  Powers  represented  at 
the  Conference. 

This  report  should  not  l)e  closed  without  an  acknowledgment  of  the 
gre.it  an<l  constant  courtesy  of  the  Cov-rnment  of  the  Netherlands  and 
all  its  representatives  to  the  .\merican  commission  as  well  as  to  all 
the  members  of  the  CcMiference.  In  every  way  they  have  sought  to 
a-d  u-  in  our  work  and  to  make  our  stay  agreeable  to  us.  The  ac- 
commodations they  have  provided  for  the  Conference  have  enhance.) 
it-  (lignitv  and  increased  its  efficiency. 

It  may  also  be  well  to  put  on  record  that  from  the  entire  Confer- 
ence, without  exception,  we  have  constantly  received  marks  of  kmd- 
IR-,  .ind  that  although  so  many  nations  with  different  interests  were 
represented,  there  lias  not  been  in  any  session,  whether  of  the  Confer- 
ence or  of  any  of  the  committees  or  subcommittees,  anything  other 
than  calm  and  courteous  debate. 

The  text  of  the  Final  Act  of  the  various  convention?  and  declara- 
tions referred  to  therein,  i-  appended  to  this  reixirt,' 
Ml  of  which  is  most  respectfully  submitted: 

.Andrew  D.  White,  ['resident, 

Setii  Low. 

Stanford  Newel. 

A.  T.  Mahan. 

Wh.eiam  Crozier. 

Frederick  \V.  Holes,  Secretary. 


'N-'t  prititfH 


RKPOKT  OF  rm-;  amkrican  dixegatidn 


29 


REPORT  OF  CAPTAIN  CROZUCK  TO  THE  AMERICAN  DELEOATION  TO  THE 
FIRST  IIACCK  CONFERENCE,  RE(;ARDINC.  THE  WORK  OF  THE  FIRST 
COMMITTEE  OF  THE    CONFERENCE   ANll    ITS   Srl!(  i  iM  M  ITTEE' 

The  Hague,  July  ji,  iSgg. 
The  Commission  of  the  United  States  of  Ameriea  to  the  International 
Conferenee  at  The  Hague. 

(iENTiJCMKN  :  I  liavc  tlic  lionor  of  submitting  a  resume  of  the  work 
of  tlic  tir.-.t  committee  of  the  Conference  and  of  its  first  subcom- 
mittee, wliich  was  the  military  subdivision,  concerning  the  following 
sul)jects,  which  are  mentioned  in  the  second  and  third  numbered  ar- 
ticles of  the  circular  of  Count  Mouravieff  of  December  30,  1898 
(January  11,  18W),  namely:  pnwders,  explosives,  field  guns,  bal- 
loons, and  muskets;  also  the  subject  of  bullets  which,  although  not 
mentioned  in  either  of  the  above  designated  articles  of  Count  Moura- 
vietT's  circular,  were  considered  by  this  committee,  notwithstanding 
that  it  would  have  apjieared  more  logical  to  consider  them  under  the 
seventh  numbered  article  of  the  circular,  referring  to  the  declaration 
concerning  the  laws  and  customs  of  war  made  by  the  Brussels  Confer- 
ence in  1874. 

The  Russian  representative  on  the  first  committee  wa>  Colonel 
Gilinsk-y,  and  the  propositions  for  discussion  were  for  the  most  part 
presented  by  him  in  the  name  of  the  Russian  (jovernment,  and  upon 
him  generally  devolved  the  duty  of  explaining  the  proposals  and  of 
supporting  them  in  the  first  instance. 

POWDERS 

ISy  this  terin  was  meant  the  propelling  charge  of  projectiles,  as  dis- 
tingui■^lled  from  the  bursting  charge.  The  projxisition  presented  was 
that  which  is  contained  in  the  second  article  of  the  circular,  namely : 
an  agreement  not  to  make  use  of  any  more  (X)werfiil  powders  than 
those  now  cmploved,  both  for  field  guns  and  muskets.  Ti  .  was 
little  discussion  on  the  pro])<)sition  ;  in  fact,  the  remarks  of  '  nited 
.States  delegate  were  the  only  ones  made  upon  the  subject,  and  the 
proposition  was  unanimously  rejected. 


•HolN.  op.  ill.,  p.  5CK) :  Scott,  op.  .i/.,  vol. 


2'>. 


30 


THE    HAGUE    CONFERENCE   OF    1S99 


EXP!    iSIVES 

By  this  term  was  meant  the  bursting  charges  of  projectiles.  Two 
propositions  were  made.  The  first  was  not  to  make  use  of  mining 
shells  (obus  brisants  ou  a  fou^i^asscs)  for  field  artiller>-.  After  a  short 
dis*.  ssion  the  proposition  was  decided  in  the  negative  by  a  vote  of 
eleven  to  ten.  The  second  proposition  was  not  to  make  use  of  any 
new  explosives,  or  of  any  of  the  class  known  as  high  explosives  for 
the  bursting  charges  of  projectiles.  This  proposition  was  also,  after 
a  short  discussion,  lost  by  a  vote  of  twelve  to  nine. 

FIELD  GUNS 

The  proposition  on  this  subject  was  for  the  Powers  to  agree  thai  no 
field  material  should  be  adopted  of  a  model  superior  to  the  best  mate- 
rial now  in  use  in  any  country— those  countries  having  inferior  ma- 
terial to  the  best  now  in  use  to  have  the  privilege  of  adopting  such  best 
material.  During  the  discussion,  which  was  extended  to  some  length, 
the  question  divided  itself  into  two  parts,  and  two  votes  were  taken 
upon  it.  The  first  was  as  to  whether,  in  case  improvements  in  field 
artillery  should  be  forbidden,  this  interdiction  should  nevertheless 
permit  everybody  to  adopt  the  most  perfect  material  now  m  use  any- 
where. The  vote  upon  this  question  was  so  accompanied  by  reser- 
vations and  explanations,  that  it  was  impossible  to  state  what  the 
result  of  it  was— the  only  thing  evident  being  that  the  question  was 
not  entirely  understood  by  the  voting  delegates.  Consequently,  a  sec- 
ond vote  was  taken  upon  the  question  whether  the  Powers  should  agree 
not  to  make  use,  for  a  fixed  period,  of  any  new  invention  in  field  artil- 
lery. This  question  was  decided  in  the  negative  by  a  unanimous  vote, 
with  the  exception  of  Russia  and  Bulgaria,  which  abstained  from 
voting.  The  Russian  delegate,  at  a  later  period,  explained  that  his 
abstention  was  due  to  the  fact  that  the  question  had  taken  such  a  form 
that  its  decision  in  the  affirmative  would  have  prevented  the  adoption 
of  rapid  fire  field  gims,  which,  in  the  view  that  these  were  of  an  exist- 
ing type,  he  desired  to  retain  for  his  Government  the  privilege  of 
adopting. 

B.M.IX10NS 

The   subcommittee   first   voted  a  perpetual  prohibition   of  the  usi- 
of  balloons  or  similar  new  machines  for  throwing  projectiles  or  ex- 


I 


REPORT  OF  THE  AMERICAN   DELECATION' 


31 


plosives.  In  the  full  committee,  t'.n?  subject  was  brought  up  for  re- 
consideration by  the  United  States  elegatc  ;ii  d  the  prohibition  was, 
by  unanimous  vote,  limited  to  cover  a  period  of  five  years  only.  TI.e 
action  tal  i  was  for  humanitarian  reasons  alone,  and  was  founded 
upon  the  opinion  that  balloons,  as  they  now  exist,  form  such  an  un- 
certain means  of  injury  that  they  can  not  be  used  with  any  accuracy ; 
that  the  persons  or  objects  injured  by  throwing  explosives  from  them 
may  be  entirely  disconnected  from  any  conflict  which  may  be  in  pro- 
cess, and  such  that  t'-.eir  injury  or  destruction  would  be  of  no  prac- 
tical advantage  to  the  party  making  use  of  the  machines.  The  limi- 
tation of  the  interdiction  of  five  years"  operation  preserves  liberty  of 
action  under  changed  circumstances  which  may  be  produced  by  the 
;rogress  of  invention. 

MUSKETS 

The  proposition  presented  under  this  head  was  that  no  Power  should 
change  their  existing  tyi)e  of  small  arm.  It  will  be  observed  that  this 
proposition  differed  from  that  in  regard  to  field  guns,  which  permitted 
all  Powers  to  adopt  the  most  perfect  material  now  in  existence — the 
reason  for  the  difference  being  explained  by  the  Russian  delegate  to 
lie  that,  whcrta<  there  vvy  a  great  difference  in  the  excellence  of  field 
artillery  material  in  use  in  JiflFerent  countries,  they  have  all  adopted 
snbst'  -Hally  the  same  musket,  and  being  on  an  equal  footing,  the 
prese.  ould  be  a  good  time  to  cease  making  changes.  The  object 
of  the  proposition  was  stated  to  be  purely  economic.  It  was  ex- 
plained that  the  prohibition  to  adopt  a  new  type  of  musket  would  not 
he  intended  to  5)reveiit  the  improvement  of  existing  types;  whereupon 
thvT.  immediately  arose  a  discussion  as  to  what  constituted  a  type  and 
wi.t  improvements  might  be  made  without  falling  under  the  prohibi- 
tion of  not  changing  it.  Efforts  were  made  ic  effect  a  concord  of 
views  by  specifying  details,  such  as  initial  velocity,  weight  of  pro- 
jectiles, etc.,  also  bv  the  proposition  to  limit  the  time  for  which  the 
prohibition  should  hold,  but  no  agreement  could  be  secured.  The 
I'liited  States  delegate  stated  early  in  the  discussion,  nn  the  attitude 
of  the  United  States  toward  questions  of  this  class,  that  our  Govern- 
ment did  not  consider  limitations  in  regard  to  the  use  of  military  in- 
ventions to  be  conducive  to  the  peace  of  the  world,  and  for  that  rea- 
son such  limitation  would  in  general  not  be  supported  by  the  .Ameri- 
can commission. 

A  separate  vote  was  taken  upon  the  question  whether  the  Powers 


32 


Till.    llAdlK    CdNlF.KENC  K   OF    ISW 


should  agree  not  to  make  use  of  automatic  muskets,  ami  as  this  may 
be  taken  as  a  fair  example  of  the  class  of  improvements  which,  although 
they  may  have  reached  such  a  stage  as  to  be  fairly  before  the  world, 
have  not  \et  been  adoj)tetl  by  any  nation,  an  analysis  of  the  vote  taken 
upon  it  may  be  interesting  as  shin\ing  the  attitude  of  the  different 
l*ower>  m  regard  to  >uch  questions.  The  .'-itale-.  \oling  in  favor  of 
the  prohibition  were  llclgiuni.  Denmark,  Spain,  Holland.  Persia,  Rus- 
sia, Siani,  Switzerland,  and  I'.ulgaria  (nine).  Tho.se  voting  again>t 
it  were  (ierinany.  the  Lnited  States,  .Austria-Hungary,  (ireat  15ritain, 
Italy,  Sweden  and  Norway  (six).  .\nd  th<ise  abstaining  were  France, 
J.-ipan,  Portugal,  Roumania,  Servia,  and  Turkey  (six).  I-' rem  this 
-.tatenuiit  it  may  be  seen  that  none  of  the  great  Powers  of  the  world, 
except  Russia,  was  willing  'o  accept  r(.striction^,  in  regard  to  military 
improvements  when  the  (luestion  of  increase  of  efhciency  wa>  in- 
volved, and  that  one  great  Power  (  France)  abstained  from  expre>-ing 
an  opinion  upon  the  sul)ject. 

In  the  full  committee,  after  another  effort  to  .secure  some  action  in 
the  line  of  the  ])ropositi(jn  had  failed,  it  was  agreed  that  the  subject 
should  be  regarded  as  (jpcn  for  future  consideration  of  the  difFerent 
( lovernment-;. 

.\  question  was  al>o  raised  a--  to  whether  there  should  be  any  agree- 
ment in  regard  to  the  use  of  new  means  of  destruction,  which  might 
[lossiblv  h;ive  a  tendency  to  come  into  vogue,  such  as  tliu>;e  depetuliiig 
upon  electricity  or  chemistry.  After  a  ^hort  discus-ion,  in  which  the 
Russian  rcprescnt.itive  <leclared  his  Cioverninent  to  be  in  favor  of  jiro- 
hibiting  the  use  of  all  -ucli  new  instrumentalities  because  of  their  view 
that  the  mean-  of  destruction  at  present  emjiloyed  were  quite  sufticient. 
the  (|uestion  was  al-o  put  ,iside  as  one  for  future  con-idcration  on  llic 
part  of  the  different  Powers. 

The  I'nited  .States  re])resentative  made  no  objection  to  the-e  qiie-- 
tions  being  con-idered  as  remaining  open  u|>on  the  general  ground  of 
not  ofifering  opposition  to  de-ired  freedom  of  discussion,  the  attit.ule 
of  the  I'nited  States  in  rc;,;iril  to  them  having,  however,  been  made 
known  by  his  statement  already  given. 


Bfl.LT.TS 


This  subject  gave  rise  to  tuore  active  debate  and  to  more  diflference- 
of  view  than  anv  other  considered  bv  the  subcommittee,  A  formula 
was  adopted  as  follows : 


KKfOHT  OF  Till':  AMERICAN  di;lf.(;ation 


33 


The  use  of  bullets  which  e\])aii(l  or  flatten  easily  in  tiie  hunnri 
hcKJy,  >uih  as  jacketed  hulUts  of  which  the  jacket  does  not  entirely 
cover  the  core  or  has  incisions  in  it,  should  he  forhidden. 

When  this  subject  caine  up  in  the  full  committee  the  British  repre- 
sentative, Major-(  jeneral  Sir  John  Ardagli,  made  a  declaration  of  the 
position  of  his  ( iovernment  on  the  subject,  in  vviiici;  he  described  their 
dumilum  bullet  as  one  haviiijj;  a  '.cry  --nKdl  (lortion  of  the  jacki't 
removed  from  the  point,  so  as  to  leave  uncovered  a  portion  of  the 
core  of  about  the  size  of  ,i  ])in-head.  He  said  that  this  bullet  did  not 
expand  in  such  manner  a^  to  produce  wounds  of  excejitional  cruelty, 
i)ut  that  on  the  contr.'iry  the  wounds  produced  by  it  were  in  f^eneral 
less  severe  than  those  jiroduced  by  tiic  Snider.  Martini-Henry,  and 
other  rifles  of  the  period  inuiudiately  precedin;,'  that  of  the  adoption 
of  the  |)re-ent  stnall  bore.  lie  ascribed  the  b;id  reputation  of  the  dnni- 
dum  bullet  to  some  ex])eriments  made  at  'I'ubin^'en  in  (ierm.iny  with 
a  btillet  from  the  forward  i)art  of  which  the  jacket,  to  a  distance  of 
more  than  a  diameter,  was  removed,  ihe  wounds  produced  by  this 
bullet  were  of  a  fri),ditful  character,  and  the  bullets  beinff  tjenerally 
supposed  to  be  similar  to  the  dumdum  in  con>lruct'on  had  ])robal)1y 
t^^iven  ri>e  to  the  unfounded  prejudice  ajjainst  the  latter. 

Tlie  I'nited  .States  representative  here  for  the  first  time  took  part 
in  the  discussion,  advocating,'  the  abandonment  of  the  atteni])t  to 
cover  the  |)rinciple  of  prohibition  of  bullets  producing  unneces-arily 
cruel  wounds  by  the  specification  of  details  of  construction  of  the  bul- 
let, and  profxisinij  the  follow  inj^  formula  : 


The  use  of  bullets  which  inflict  wounds  of  useless  cruelty.  <uch 
as  explosive  bullets  anri  in  j^encnd  every  kind  of  bullet  which 
exceeds  the  limit  necessary  for  pl.acinjj  a  man  imnudiately  lu>r.\- 
de  combat,  should  be  forbidden. 

The  committee,  however,  adhered  to  the  oris^'inal  proposition,  which 
it  voted  withoiu  acting'  on  the  substitute  submitted. 

The  action  of  the  committee  bavins;  lef*  in  an  tmsatisfactory  state 
the  record,  which  thus  stated  that  the  I'rited  States  had  pronounced 
aijainst  a  proposition  of  humanitarian  intent,  withoiit  indicatinsj  that 
our  Government  not  only  stood  ready  ti>  support  but  also  proposed  by 
its  representatives  a  formula  which  was  believed  to  meet  the  require- 
ments of  humanitv  much  better  than  the  one  adopted  by  the  committee. 


34 


THE    HAGUE    CO.NFEHENCE   OF    1899 


the  I'nited  States  delegate,  with  the  approval  of  the  commission  and 
in  its  name,  proposed  to  the  Conference  at  its  next  full  session  the 
above-mentioned  fonnula  as  an  amendment  to  the  one  submitted  to 
the  Conference  by  the  first  committee.  In  presenting  the  amendment 
he  stated  the  objections  to  the  committee's  proposition  to  be  the  fol- 
lowing: First,  that  it  forbade  the  use  of  expanding  bullets,  notwith- 
standing the  possibility  that  they  might  be  made  to  expand  in  such 
regular  manner  as  to  assume  simply  the  form  of  a  larger  caliber,  which 
property  it  might  be  necessary  to  .uke  advantage  of,  if  it  should  in 
the  future  be  found  desirable  to  adopt  a  musket  of  very  much  smaller 
caliber  than  any  now  actually  in  use.  Second,  that  by  thus  prohibiting 
what  might  be  the  most  humane  method  of  increasing  the  shocking 
power  of  a  bullet  and  limiting  the  prohibition  to  expanding  and  flatten- 
ing bullets,  it  might  lead  to  the  adoption  of  one  of  much  more  cruel 
character  than  that  prohibited.  Third,  that  it  condemned  by  designed 
implication,  without  even  the  introduction  of  any  evidence  against  it, 
the  use  of  a  bullet  actually  employed  by  the  army  of  a  civilized  nation. 

I  was  careful  not  to  defend  this  bullet,  of  which  I  stated  I  had  no 
knowledge  other  than  that  derived  from  the  representations  of  the 
delegate  of  the  Power  using  it,  and  also  to  state  that  the  United  States 
had  no  intention  of  using  any  bullet  of  the  prohibited  class,  being 
entirely  satisfied  with  the  one  now  employed,  which  is  of  the  same  class 
as  those  in  common  use. 

The  original  profx>>ition  was,  however,  maintained  by  the  Confer- 
ence— the  only  negative  votes  being  those  of  Great  F^ritain  and  the 
United  States.  It  may  be  stated  that  in  taking  the  vote  it  was  decided 
to  vote  first  upon  the  proposition  as  it  came  from  the  committee,  in- 
stead of  upon  the  amendment,  notwilh'-tanding  the  strong  opjxisition 
of  the  Uniter!  .'^lates  and  other  Powers  to  this  method  of  procedure 
as  being  contrary  to  ordinary  parliamentary  usage  and  preventin<T  an 
expression  of  opinion  upon  the  amendment  submitted  in  the  iia".c  of 
the  United  States  commi-^ion. 

From  this  report  results  the  advice  that,  of  the  two  declarations 
of  the  Conference  originating  in  the  first  subcommittee  of  the  first 
committee,  viz :  that  concerning  the  use  of  balloons  and  that  con- 
cerning the  use  of  expanding  or  flattening  bullets,  the  first  only  be 
signed  by  the  United  States  commission. 

The  reports  of  General  den  Beer  Portugael  of  the  work  of  the 
subcommittee,   and   of  M.    van   Karnebeek  of  that   of  the   full   first 


REPORT  OF  THE  AMERICAN  DELEGATION 


35 


committee,  are  hereto  annexed  and  marked  respectively  "A"  and  "B." 
I  am,  gentlemen, 

Very  respectfully,  your  obedient  servant, 

William  Crozier, 
Caf'tdin  of  Ordnance,  L'.  S.  A., 
Commissioner. 


REPORT  OF  CAPTAIN  .M.MIAN  TO  THE  AMLklCAN  DELEGATION  TO  THE 
FIRST  llAGCE  CONFERENCE.  ON  DISARMAMENT,  ETC..  WITH  REFER- 
ENCE   TO    NAVIES' 

The  Hague,  July  j/,  iSgg. 

To  the  Commission  of  the  United  States  of  America  to  the  Interna- 
tional Conference  at  The  Hague. 

Gentlemen  :  I  beg  to  make  the  following  report  concerning  the 
deliberations  and  conclusions  of  the  I'cacc  (.'onfcrence  on  the  ques- 
tions of  disarmament,  and  the  limitations  to  be  placed  upon  the  devel- 
opment of  the  weapons  of  war,  so  far  as  navies  are  concerned. 

Three  questions  were  embraced  in  the  first  four  articles  of  the 
Russian  Letter  of  December  30,  1898,  and  were  by  the  Conference 
referred  to  a  committee,  known  as  the  first  committee.  The  latter 
was  divided  into  two  subcommittees,  which  dealt  with  Articles  2,  3 
and  4,  as  they  touched  on  naval  or  military  subjects,  respectively.  The 
general  drift  of  these  three  articles  was  to  suggest  limitations,  present 
and  prospective,  upon  the  development  of  the  material  of  war,  either 
by  increase  of  power,  and  of  consequem  destructive  effect,  in  weapons 
now  existing,  or  by  new  inventions.  Article  1,  which  proposed  to 
place  limits  upon  the  augmentation  of  numbers  in  the  personnel  of 
armed  forces,  and  upon  increase  of  expenditure  in  the  budgets,  was 
reserved  for  the  subsequent  consideration  of  the  full  committee. 

As  regards  the  development  of  material,  in  the  direction  of  power 
to  inflict  injury,  there  was  unanimous  assent  to  the  proposition  that 
injury  should  not  be  in  excess  of  that  clearly  required  to  produce 
decisive  results;  but  in  the  attempt  to  specify  limitations  in  detail, 
insurmountable  obstacles  were  encountered.  This  was  due,  partly  to 
an  apparent   failure,  beforehand,  to  give  to  the  problem   submitted 


'Holls,  np.  lit.,  p.  493;  Scott,  of.  cit.  vol.  ii.  p    .%. 


36 


TIIK    1IA(;UF.    CDNKKKF.NCF.    OF    1899 


llial  "i-tutli-  l^ii-iilal'li-  ti'ilniujuc."  ;i  wi>li  for  which,  fxjjrc^^scd  hy  the 
Conference  to  the  liovernnients  represented,  was  almost  the  only 
tanjjihle  result  of  tlie  delil)erations. 

riiree  proi)0>ition-.  were,  how  ever,  adopted  :  one,  unanimously,  for- 
hiddiUK.  during;  a  term  of  tivt  years,  the  throwing  of  projectiles,  or 
explosives,  from  l)allot)ns,  or  by  other  analogous  methods.  Of  the 
two  others,  one,  forbidding  the  use  of  ])rojectiles  the  sole  purpt)se  of 
uhicli  was,  on  bursting,  to  spread  asphyxiating  or  deleterious  gases, 
wa>  discussed  mainly  in  the  naval  subcommittee.  It  received  in  that, 
and  afterward  in  the  fully  committee,  the  negative  vote  of  the  United 
State-,  naval  delegate  alone,  although  of  the  affirmative  votes  several 
were  given  -ubjecl  to  unanimity  of  acceptance.  In  the  tinal  reference 
to  the  Conference,  in  full  session,  of  the  question  of  recommending 
the  ado|)tion  of  such  a  prohibition,  the  delegation  of  Creat  Britain 
voted  "No,"  as  did  that  of  the  United  States, 

.\s  a  certain  disjx)sition  has  l)een  observed  to  attach  odium  to  the 
view  adopted  by  thi^  commission  in  this  matter,  it  seems  proper  to 
state,  fully  and  explicitly,  for  the  information  of  the  Government, 
that  on  the  first  occasion  of  the  >ubject  arising  in  subcommittee,  and 
sub>eiiuently  at  various  times  in  full  committee,  and  before  the  Con- 
ference, the  United  States  naval  delegate  did  not  cast  his  vote  silently, 
but  gave  the  reasons,  which  at  his  demand  were  inserted  in  the  re- 
ports of  the  ilay-  proceedings.  These  reasons  were,  briefly:  1.  That 
no  shell  emitting  such  gases  is  as  yet  in  practical  use.  or  has  under- 
gone ade([uate  exjK'riment :  conse(|uently,  a  vote  taken  now  would 
be  taken  in  ignorance  of  the  facts  as  to  whether  the  results  would 
be  of  a  decisive  character,  or  whether  injury  in  excess  of  that  neces- 
sary to  attain  the  end  of  warfare,  the  immediate  disabling  of  the 
enemy,  would  be  inflicted.  2.  That  tl"-  proach  of  cruelty  and  per- 
fidy, addressed  against  these  supp<jsevi  shells,  was  equally  uttered 
formerly  against  firearms  and  torj)edoes,  both  of  which  are  now  em- 
ploved  without  scruple.  Until  we  knew  the  effects  of  such  asphyxiat- 
ing shells,  there  was  no  saying  whether  they  would  be  more  or  less 
merciful  than  missiles  now  permitted.  3.  That  it  was  illogical,  and 
not  demonstrably  humane,  to  be  tender  aliout  asphyxiating  men  with 
g.-is,  wluti  all  were  prepared  to  admit  that  it  was  allowable  to  blow 
the  bottom  out  of  an  ironclad  at  midnight,  throwing  four  or  five  hun- 
dred men  into  the  sea,  to  be  choked  by  water,  with  scarcely  the  re- 
motest chance  of  escaiH?.     If.  and  when,  a  shell  emitting  asphyxi.itmg 


KF.POKT  OF  TllK   AMF.RICAN   nKLF.(;ATION 


:7 


gases  alone  has  been  siiccessfiilly  [)ro(luce(l,  then,  and  not  bel'ore,  men 
will  be  able  to  vote  intelligently  on  the  subject. 

The  question  of  limiting  armaments  and  budgets,  militaiv  .ind  naval, 
likewise  resulted  in  failure  to  reach  an  agreement,  owing  to  the  ex- 
tensive and  complicated  considerations  involved.  .X  general  wi>h  was 
emitted  that  the  subject  in  its  various  relations  might  in  the  future 
receive  an  attentive  study  on  the  part  of  the  various  Cioveniment- ; 
and  there  was  adopted  without  dissent  a  resolution  projiosi-d  in  the 
first  committee,  in  full  session,  by  M.  llourgeois.  the  first  ckleg.ile 
of  France,  as   follows: 

The  committee  consider  that  the  limitation  of  the  niil't.irv 
expenditures  which  now  weigh  upon  the  world  is  greatly  t(  t)e 
desired,  for  the  increase  of  the  moral  and  material  welfare  of 
humanity. 


This  sentiment  received  the  assent  of  the  Conference  also. 

The  military  and  naval  delegates  of  the  United  States  commission 
bore  a  part  in  all  the  proceedings  in  sub-  and  full  committee ;  but, 
while  joining  freely  in  the  discussion  of  questions  relating  to  the  de- 
velopment of  material,  reserve  was  maintained  in  treating  the  subject 
(if  disarm.'iment  and  of  limitation  of  budgets,  as  being  more  properly 
of  European  concern  alone.  To  avoid  the  {KDSsibility  of  misapprehen- 
sion of  the  jHisition  of  the  I'nited  States  on  thi.s  matter,  the  follow- 
ing statement,  drawn  up  by  the  Commission,  was  read  at  the  final 
meeting  of  the  first  committee,  July  17,  when  the  report  to  be  pre- 
sented to  the  Conference  was  under  consideration: 

The  delegation  of  the  I'nited  States  of  America  have  con- 
curred in  the  coticlusions  upon  the  first  clause  of  the  Russi:in 
Letter  of  December  .W,  1S9S,  ])resented  to  the  Conference  bv 
the  fir>t  commission,  n;miely :  that  the  projxisals  of  the  F<us-ian 
representatives,  for  fixing  the  amounts  of  efTective  for'-es  and 
of  budgets,  military  and  naval,  for  periods  of  five  and  three  years, 
can  not  now  be  accepted,  and  that  a  more  profound  study  on  the 
I)an  of  each  State  concerned  is  to  be  desired.  Hut,  while  thus 
supporting  what  seemed  to  be  the  only  practicable  solution  of  a 
question  submitted  to  the  Conference  by  the  Russian  Letter,  the 
delegation  wishes  to  place  upon  the  record  that  tl-  I'nited 
States,  in  so  doing,  dc^s  not  express  any  opinion  as  to  .le  course 
to  be  taken  by  the  States  of  Europe. 

Tliis  declaration  is  not  meant  to  indicate  mere  inditTerence  to 


38 


THi:    HAGUE    CONFERENCE   OF    1899 


.1  ilitViciilt  prohK'tn  !/ci-iiiisi>  it  iloi-s  not  atVi'ct  tlit-  United  States 
inmieiliatcly,  hut  fx])ri'sses  a  dctcrtnination  to  refrain  fnmi  enun- 
ciatintj  opinions  u(K)n  matters  into  wliicl),  as  concernitijj  Kuro|)e 
alotie,  tlie  L'niteil  States  lias  no  claim  to  enter.  The  words  drawn 
up  by  M.  i!ourj;eois,  and  adopted  hy  tlie  first  commission,  re- 
ceived also  tlie  hearty  concurrence  of  this  delet^jation  because  in 
so  doinj;.  it  exproses  the  cordial  interest  and  sympathy  with  which 
the  United  States,  while  raiefully  al>-taininK  from  anything  that 
might  resemble  interli  ice.  rej;ard>  all  movements  that  are 
thought  to  ten<l  to  the  welfare  of  Europe.  The  military  and 
naval  armaments  of  the  United  States  are  at  present  so  small, 
relatively,  to  the  extent  of  territory  and  to  the  numlier  of  popu- 
lation, as  well  as  in  c()m|>arison  with  those  of  other  nations,  that 
their  size  can  entail  no  ad<lition.il  burden  of  expense  upon  the 
latter,  nor  can  even  form  a  subject  for  profitable  mutual  dis- 
cussion. 

I    have    the   honor   to   Ik- 

Your  obedient  servant. 

A.  T.  .M  \H\N-. 
Captain  U.  S.  A'ot'y  atiil  Dclri'atc. 


RF.PORT    OF    CAPTAIN     MAIIAN     TO    TIIF.    AMF.HICAN    HKIFCATION     TO    TUF. 
FIRST    IlAcrr.    CONFFRFNCK,    KFcJARDI  NC,   TIIF.    WOKK    OF  THE   SECOND 

roMMiTTiF  <iF  Tin;  conffhknce' 

The  Hague,  July  j/,  iSgg. 

To  the  Commission  uf  the  United  States  of  America  to  the  Intcr- 
luitional  Conference  at  The  Iuii:^iie. 

Gkntlemkn  :  1  have  the  honor  to  submit  to  the  commission  the  fol- 
lowing report,  which  I  believe  to  be  in  sutficient  detail,  of  the  general 
])roci.'edings,  and  of  the  conclusions  reached  by  the  second  committee 
of  the  Conference,  in  relation  to  .Articles  5  and  6  of  the  Russian  cir- 
cular letter  of  December  30,   1898. 

In  the  original  distribution  of  labor  of  the  Conference,  Articles  5, 
6,  and  7,  of  the  said  letter,  were  attributed  to  the  second  committee. 
The  latter  was  divided  into  two  subcommittees,  to  one  of  which  was 
assigned  the  .Articles  .s  and  h.  as  both  related  to  naval  matters.  Of 
this  sulKonimittee  I  was  a  member,  and  it  ha.s  fallen  to  me  especially, 


'HoUs.  op.  lit.,  p.  497:  Scott,  op.  cit.,  vol.  ii,  p.  39. 


RKPOKT  OF  Till.  AMKRIIAN    Dl  I.Kr.ATKIN 


^0 


amon>;  tlie  l'nit»'il  Stato  lielt'Katt"*.  to  follow  tlie  fortunes  of  tlic 
two  articlc-i  named  in  their  i)roH;ress  tlirouRli  the  subcimimittee,  ami 
thrnuj;Ii  the  full  committee;  hut  not  through  the  smaller  s])ecial  coni- 
nuttee,  the  i-omitc  dc  icdiutimi,  to  whuh  the  sulKominittef  in- 
trusted the  formulation  of  its  views.  Of  that  comitc  dc  redaction 
I  was  not  a  memlwr. 
These  two  articles  are  as  fcillows; 

5.  AdaptaliKU  to  naval  wars  of  the  stipulations  of  the  (icncva 
ConventioM  .)l  1S((4,  on  the  ha^e  of  tlif  aihlitiniial  artKle^  nf 
1«6X. 

'>.  Neutralization,  fur  the  same  reason,  of  hoats  or  iaunclu's 
employed  in  the  rescue  of  the  shipwrecked  durin).^  or  after  naval 
hattles. 

The  general  de^irahility  of  giving;  to  hospital  ve-^sels  the  utmost 
immunity,  consistent  with  the  vigorous  prosecution  of  war,  was  gen 
erally  couceiled,  and  met,  in  fact,  with  no  op]>)sition;  but  it  was 
justly  remarkeil  at  the  outset  that  measures  must  he  taken  to  put 
under  ethcient  control  of  the  helligcrents  all  hosjiital  shijjs  fnted  out 
hy  private  iKiicvolence.  or  hy  neutrals,  whether  associations  or  indi- 
viduals. It  is  evident  that  unless  such  control  is  explicitly  affirmed, 
and  unless  the  various  c.ises  that  may  arise,  in  which  it  may  he  needed, 
are,  ;i  far  as  |>ossit)le,  foreseen  and  provided  for,  incidents  ma\  well 
occur  which  will  bring  into  inevitable  discredit  the  whole  system  of 
luutral  vessels,  hospital  or  others,  devoted  to  the  benevolent  assist- 
ance of  the  sufferers  in  war. 

The  first  suggestion,  offered  almost  immediately,  was  that  the 
simplest  metlKxl  of  avoiding  such  inconvenience  would  In-  for  the 
said  neutral  vessels,  being  engaged  in  service  identical  with  that  of 
belligerent  hospital  vessels  to  which  it  was  prop<iped  to  extend  the 
utmost  possible  immunity,  should  frankly  enter  the  belligerent  service 
hv  hoisting  the  flag  of  the  belligerent  to  which  it  oflered  its  services. 
This  being  permitted  hy  general  consent,  and  for  purposes  i)urely 
hiniianitarian,  would  constitute  no  breach  of  neutrality,  while  the  con- 
trol of  either  belligerent,  when  in  presence,  could  be  exercised  with- 
out r;iising  those  vexed  questions  of  neutral  rights  which  the  experi- 
ence of  maritime  warfare  shows  to  be  among  the  most  difficult  and 
delicate  problems  that  belligerents  have  to  encounter. 

This  proposition  was  supported  by  me,  as  being  the  surest  mode  of 
avoiding  difliculties  easy  to  be  foreseen,  and  which  in  my  judgment 


40 


Mil'     IIACll;    (  UN  UNI  St  K    ol"    IS"*** 


.in-  whi'lly  nn|ir()\iiliil  for  1>\  t!if  arlulcs  adopted  by  the  C'oiifcr- 
iiKc.  11k-  iKiitr.il  >lii|i  |N,  hy  t'oinnKiii  consent,  |HTtnittfi|  to  icleiitify 
it^ilf  witli  tlif  Idlli^ji  rmt  ,iii(l  }v>  <.|n'rati()ii»  for  certain  laiulabli'  ptir- 
|ki»cn:  v\l\y  iii't  for  tin-  time  aN^imie  the  fK'lliKereiit^  flaj;?  The  rea- 
--(iniiij;  of  tlte  o|i|Hisitii)M  wa--  liat  m'  'li  ve>.sils  should  Ik'  eoiividcrid  in 
ilie  -anie  Unht  u-  tiatioiial  ve' sel.s,  and  that  to  re(|uire  them  to  hoist 
a  fori'i)4ii  tla^  would  he  deroj^'atory  iportcunt  iUtci>tte\  to  the  -ov- 
erii^;iity  of  the   Slate   to   which  they   U'loiiKed.      Thi-.   view   prevailed. 

The  fir>t  three  meetings  of  the  Mihcommittee,  May  25,  ,K),  and 
jniie  1,  were  oceiipied  in  a  ^eiural  discussion  of  the  additional  arti- 
cles of  1W.H,  MiK^'esteil  hy  tlu  Kii-ian  letter  of  Decemher  .W,  1S'>S, 
as  iIr-  hasi-  of  ilic  adaptation  to  naval  wars  of  the  ( ieneva  (  onven- 
tion  of  lH(i4  In  this  disenssion  was  aNo  cmhraced  Article  b  of  the 
Kiissian  letter,  relating'  lo  the  tieiitrah/ation  of  jxiats  eii>;a^ed  in  res- 
cuing' the  shi])w Til  k(  il  i  »ii/)(/iii^i-.r )  thai  i-,  men  overlH>ard  for  any 
caiisc  diirint:.  or  .iftiT.  naval  hattlc 

\t  the  closf  if  the  sicond  nieetinf.;  it  was  decided  that  the  presi- 
dent of  the  -iihciiiitnittci-  should  apixiint  the  coiintc  dc  redaction 
hefore  mentioned.  As  tinalK  constiinted.  this  ioti\\tc  dr  ri-daction 
containeil  a  reiire-uitative  from  ( Ireat  Ilritain.  from  ("lermany.  from 
Ktissja.  and  from  IVance.  At  the  clo-e  of  its  ihird  session  the  siih- 
cnmmittei  W.I-  .idjotirned  to  await  the  re(H'rt  of  the  ((iiuitc  dr  rrdac- 
tii'it.  h  ,i'.,',iiti  as-eiiili'id  .and  riceived  the  rt  port  of  June  1,>;  thi- 
lieint;  the   fourth  nu>iin;,'  of  the  sulK-oniniiltee. 

The  iiimitt'  dr  'idacti''n  emlmdied  iti  ten  articles  the  conclusion- 
of  the  suheommitti  I'  The  article-  were  preceded  by  a  lucid  or  com- 
I)rehensive  rejMirt,  ';!•.  «ork  cliieth  of  M.  Renault,  the  French  niein- 
her  '.f  tlie  fowit,-  ilr  ifdiittiDii.  Thi-  report  embraces  the  rcasonint; 
ilpii!'.  \\!lich  thf  .;-!i  ••!ii  ■)  ■!  t!'e  articles  i-  -npjioiled  \  ci)i>y  of  the 
.  les  inirkcil  A  "i  .iccumpanies  this  letter.' 
r''..Tt    .nd  the  articles.  I  pointed  out  to  one  of 

,-.      i   • 

-tance.  ,is  the  sinking:  of  their  ship, 

rent-  -   ('■       The  omission  was  one  likely  to 

n    ■■•Ai      -•■--■■■m'l   to   remember  the   ver\    concrete 

^T-:--!',  vac)'!  nrrrhi'utid  saving  the  men 

Mcr^ani..   '-nrh'  iiiu;  ,"—  -ji.iaiii.  who  were  thcr  held  to  !>€  under 


reiHirt    iml  oi   th 
I 'pon   re.  eix'in; 
til'     -!ieiTiln-s   of 
wa-   made   'o   meet    :h' 
.1  ii.ival   en'j.ij^'enK"-" 
'.vere  pie    ed  iil>  '        .  re. 
occnr    \'     ,1!!     \~!r~r.'ir.. 
atwl  :     -Uv:      ■   ■    -^.nce  of 
of 


'<tcti(<ii,  that  no  adequate  provision 
■,    who  hv  .accident   connected   with 


•\. 


-#.-_*{g,- 


m mm  av  riir  amknk.w  lHL^llArl()N 


41 


tlic  protfcliun  of  tlic  neutral  flag.  It  rtquiri>  no  flight  of  iina){ination 
lo  r^ali/c  that  a  liostili  ciiiiiniaiuli'i-Mi-chit'f,  whom  it  lias  alwa\3  liceii 
a  chief  object  <jf  naval  warfare  to  capture,  as  well  a-.  dIIut  valuable 
orticers,  nii>;lit  thus  escape  the  liainls  of  a  victor. 

At  the  meeting  of  the  sulicomnnttee  on  June  l<),  I  drew  attention 
10  this  omission  when  the  vole  wa-  reached  on  Article  (>.  which  prit- 
vnles  that  neutral  vessels  ol  varinus  classes,  earryiii^j  sick,  woiiiided, 
or  sliipwreckeil  [nauf rages )  hellijjerenis,  can  not  be  captured  for  the 
mere  fact  of  this  transjiortation  ;  hut  th.it  they  do  remain  e.\po-ed  to 
capture  for  violation  of  tieiitrality  which  they  may  have  committed. 
I  had  tlien — unaccountably  now  to  myself — overlooked  the  fact  that 
there  was  an  e(|ual  lack  of  satistactory  provision  in  the  case  of  the 
lios()ital  ships  under  neutr.il  tla^js,  whose  presence  on  a  scene  of  naval 
warf.ire  is  contemplateil  and  authorized  by  Article  .?.  It  was  agreed 
tiiai  1  should  appear  liefore  the  comiti-  dc  redaction,  prior  to  their 
t'lii.i!  re\isinii  of  the  report  and  articles.  This  1  did;  but  after  two 
hours,  more  or  le^s,  of  discussion,  I  failed  to  obtain  any  modification 
in  llie  report  or  the  articles.  When,  therefore,  on  the  15th  of  June, 
the  matter  came  before  the  full  second  commission,  I  contented  my- 
self—as the  articles  were  voted  only  ad  referendum — subject  to  the 
api)roval  of  tbj  (iovofiinients — with  registering  our  regret  that  no 
suitable  provision  of  the  kind  advocated  had  been  made. 

The  matter  was  yet  to  come  before  the  full  committee.  Refore  it 
(hd  -o,  1  had  recognized  that  the  difficulty  1  had  noted  concerning 
iKMtral  vessels  other  than  hospital  ships  might  arise  equally  as  rc- 
ganN  the  latter,  the  presence  of  which  was  contemplated  and  author- 
ize'l.  whereas  that  of  other  neutral  ships  might  very  well  be  merely 
accidental.  I  accordingly  drew  up  and  submitted  to  the  I'nited  States 
ciimmission.  three  additional  articles,  preceding  these  with  a  brief 
summary  of  the  conditions  which  might  readilv  occasion  the  contin- 
gency against  which  I  sought  to  provide.  This  paper  (annexed  and 
marked  B')  having  received  the  approval  of  the  delegation,  was  read, 
and  the  articles  submitted  to  the  second  committee  in  a  full  session, 
held  June  20.  imniediatelv  prior  to  the  session  of  the  Conference,  at 
4  p.m.  the  same  day  to  ratify  the  work  of  the  committee.  The  three 
additional  articles  were  referred  to  the  contite  de  redaction  with 
instructions  to  report  to  the  full  committee.  The  ten  articles  were 
then  reported  to  the  Conference  and  passed  without  opposition,  under 


'Printici  (in  p.  43. 


42 


THE    HAGUE    CONFERENCE   OF    1899 


the  reserve  that  the  articles  submitted  by  the  United  States  delegation 
were  still  to  be  considered. 

Here  matters  rested  for  some  time,  owing,  as  I  understand,  to 
certain  doubtful  points  arising  in  connection  with  the  three  proposed 
articles,  which  necessitated  reference  to  home  Governments  by  one 
or  more  of  the  delegations.  Finally  I  was  informed  that  not  only 
was  there  no  possibility  of  a  favorable  report,  nor,  consequently,  of 
the  three  proposed  articles  passing,  but  also  that,  if  pressed  to  a  full 
discussion,  there  could  scarcely  fail  to  be  developed  such  difference 
of  opinion  upon  the  construction  of  the  ten  articles  already  adopted 
as  would  imperil  the  unanimity  with  which  they  had  before  been  re- 
ceived. This  information  was  conveyed  by  me  to  the  United  States 
commission,  and  after  full  consideration  I  was  by  it  instructed  to 
withdraw  the  articles.  This  was  accordingly  done  immediately  by 
letter,  on  July  18,  to  Vice-Admiral  Sir  John  Fisher,  Chairman  of  the 
comite  de  redaction,  and  through  him  to  the  president  of  the  second 
commission. 

At  the  subsequent  meeting  of  the  full  Conference,  July  20,  the 
withdrawal  being  communicated  by  the  president  of  the  second  com- 
mittee, it  was  explained  tliat  this  commission,  while  accepting  the  ten 
articles,  and  withdrawing  its  own  suggested  additions,  must  be  under- 
stood to  do  so,  not  because  of  any  change  of  opinion  as  to  the  neces- 
sity of  the  latter,  but  in  order  to  facilitate  the  conclusion  of  the  labors 
of  the  Conference;  that  the  commission  were  so  seriously  impressed 
with  the  defects  of  the  ten  articles,  in  the  respects  indicated,  that  il 
could  sign  them  only  with  the  most  e.xplicit  understanding  that  the 
doubts  expressed  before  the  second  committee  would  be  fully  con- 
veyed to  the  United  States  Government,  and  the  liberty  of  action  of 
the  latter  wholly  reserved,  as  to  accepting  the  ten  articles. 

By  this  course  the  ten  articles,  which  else  might  ultimately  have 
failed  of  unanimous  adoption,  have  been  preserved  intact,  with  sev- 
eral valuable  stipulations  embodied  in  them.  But  while  there  is  much 
that  is  valuable,  it  seems  necessary  to  point  out  to  the  commission 
that  to  the  hospital  ships  under  neutral  flags,  mentioned  in  Article  .1. 
and  to  neutral  vessels  in  certain  employments,  under  Article  6,  are 
conceded  a  status  and  immunities  hitherto  unknown.  While  this  is 
the  case,  there  is  not,  in  my  opinion,  in  the  articles  any  clear  and 
adequate  provision  to  meet  such  ca.'^s  as  were  meant  to  he  met  by 
the  three  articles  proposed  by  the  commission,  and  which  are  per- 


REPORT  OF  THE  AMERICAN  DELEGATION 


43 


fectly  conceivable  and  possible.  Upon  reflection  I  am  satisfied  that 
no  necessity  exists  for  the  authorization  of  hospital  vessels  under 
a  neutral  flag  upon  the  scene  of  naval  war,  and  that  the  adhesion  of 
our  Government  to  such  a  scheme  may  be  withheld  without  injury 
to  anyone.  As  regards  Article  6,  conceding  immunities  heretofore 
not  allowed  to  neutral  vessels — for  the  transport  of  belligerents  has 
heretofore  been  a  violation  of  neutrality,  without  reservation  in  favor 
of  the  sick  and  wounded — it  appears  to  me  objectionable  and 
premature,  unless  accompanied  by  reservations  in  favor  of  the  bel- 
ligerent rights  of  capture  and  recapture.  These  articles  fail  to  provide 
explicitly.  For  these  reasons  it  is  my  personal  opinion  that  Articles 
3  and  6  should  not  be  accepted  by  the  Government  of  the  United 
States.  If  the  delegation  concur  in  this  view,  I  recommend  that  such 
opinion  be  expressed  in  the  general  report. 
I  have  the  honor  to  be 

Your  obedient  servant, 

A.  T.  Mahan, 
Captain  U.  S.  Navy  and  Delegate. 


PAPER   RE.\D   BY   CAPTAIN    MAHAN    BEFORE   THE    SECOND    COMMITTEE   OF 
THE  PEACE  CONFERENCE  ON  JUNE  20,  1899* 

It  is  known  to  the  members  of  the  subcommittee,  by  which  these 
articles  were  accepted,  that  I  have  heretofore  stated  that  there  was 
an  important  omission,  which  I  desired  to  rectify  in  an  additional  ar- 
ticle or  articles.  The  omission  was  to  provide  against  the  case  of  a 
neutral  vessel,  such  as  is  mentioned  in  Article  6,  picking  up  naufrages 
on  the  scene  of  a  naval  battle,  and  carrying  them  away,  either  acci- 
dentally or  intentionally.  What,  I  asked,  is  the  status  of  such  com- 
battants  naufrages? 

My  attention  being  absorbed  by  the  case  of  vessels  under  Article 
6.  it  was  not  until  last  night  that  I  noticed  that  there  was  equally  an 
omission  t(^  (>rovi(le  for  the  status  of  comhattants  naufrages,  picked 
up  by  hospital  ships.  In  order  that  non-professional  men.  men  not 
naval  officers,  may  certainly  comprehend  this  point,  allow  me  to  de- 
velop it.    On  a  field  of  naval  battle  the  ships  are  constantly  in  move- 


■Holls,  op.  cit.,  p.  504;  Scott,  op.  cit..  vol.  ii.  p.  44. 


44 


THE    HAGUE    CONFERENCE  OF    1899 


inent ;  not  merely  tlie  movement  of  a  land  battle,  but  a  movement  of 
progress,  of  translation  from  place  to  place  more  or  less  rapid.  The 
scene  is  here  one  moment;  a  half-hour  later  it  may  be  five  miles 
distant.  In  such  a  battle  it  happens  that  a  ship  sinks ;  her  crew  be- 
come nauf rages,  tlie  place  of  action  shifts;  it  is  no  longer  where  these 
men  are  struggling  for  life ;  the  light  cruisers  of  their  own  side  come 
to  help,  but  they  are  not  enough ;  the  hospital  ships  with  neutral  flags 
come  to  help ;  neutral  ships  other  than  hospital  also  arrive ;  a  certain 
number  of  combattants  naufraycs  are  saved  on  board  neutral  ships. 
To  which  belligerent  do  these  men  belong?  It  may  happen  that  the 
neutral  vessel,  hospital  or  otherwise,  has  been  with  the  fleet  opposed 
to  the  sunken  ship.  After  fulfilling  her  work  of  mercy,  she  naturally 
returns  to  that  fleet.  The  combattants  naufragcs  fall  into  the  power 
of  the  enemy,  although  it  is  quite  probable  that  the  fleet  to  which  they 
belong  may  have  had  the  advantage. 

I  maintain  that  unless  some  provision  is  made  to  meet  this  diffi- 
culty, much  recrimination  will  arise.  A  few  private  seamen,  more 
or  less,  a  few  subofficers,  may  not  matter,  but  it  is  possible  that  a 
distinguished  general  officer,  or  valuable  officer  of  lower  grade  may 
be  affected.  This  will  tend  to  bring  into  discredit  the  whole  system 
for  hospital  ships;  but  further,  while  hospital  ships,  being  regularly 
commissioned  by  their  own  Government,  may  be  supposed  to  act  with 
perfect  impartiality,  such  presupposition  is  not  permissible  in  the  case 
of  vessels  named  in  Article  6.  Unless  the  status  of  combattants  nau- 
fragcs saved  by  them  is  defined,  the  grossest  irregularities  may  be 
expected — the  notoriety  of  which  will  fully  repay  the  class  of  men 
wlio  would  perpetrate  them. 

As  many  cases  may  arise,  all  of  which  it  is  impossible  to  meet 
specifically,  I  propose  the  following  additional  articles  based  upon  the 
single  general  principle  that  combattants  tuinfrar/cs,  being  if<so  facto 
combatants  hors  de  combat,  are  incapable  of  serving  again  during  the 
war,  unless  recaptured  or  until  duly  exchanged : 


Additional  Articles  Proposed  by  Captain  Mahan 

1.  In  the  case  of  neutral  vessels  of  any  kind,  hospital  ships  or  oth- 
ers, being  on  the  scene  of  a  naval  engagement,  which  may,  as  an  act 
of  humanity,  save  men  in  peril  of  drowning,  from  the  results  of  the 
engagement,  such  neutral  vessels  shall  not  be  considered  as  havint; 
violated  their  neutrality  by  that  fact  alone.  They  will,  how-'er.  in 
so  doing,  act  at  their  own  risk  and  peril. 


REPORT  OF  THE  AMERICAN  DELEGATION 


43 


2.  Men  thus  rescued  shall  not  be  considered  under  the  cover  of 
the  neutral  flag,  in  case  a  demand  for  their  surrender  is  [made]  by  a 
ship  of  war  of  either  belligerent.  They  are  open  thus  to  ».apture,  or  to 
recapture.  If  such  demand  is  made,  the  men  .^o  rescued  must  be 
given  up,  and  shall  then  have  the  same  status  as  though  they  had  not 
l>een  under  a  neutral  flag. 

3.  In  case  no  such  demand  is  made  by  a  belligerent  ship,  the  men 
so  rescued,  having  been  delivered  from  the  consequences  of  the  fight 
by  neutral  interposition,  are  to  be  considered  hors  de  combat,  not  ii 
serve  for  the  rest  of  the  war,  unless  duly  exchanged.  The  Contract- 
ing Governments  engage  to  prevent  as  far  as  possible  such  persons 
from  serving  until  discharged. 


REPORT  OF  CAPTAIN  CROZIER  TO  THE  AMERICAN  DELEGATION  TO  THE 
FIRST  HAGUE  CONFERENCE,  REGARDING  THE  WORK  OF  THE  SECOND 
SI-RCOMMITTEE   OF   THE    SECOND    COMMITTEE   OF  THE    CONFERENCE' 

The  Hague,  July  j/,  1S99. 

Commission  of  the  United  States  of  America  to  the  International  Con- 
ference at  Tlie  Hague. 

Gentlemen:  I  have  the  honor  to  submit  a  summary  of  the  work 
appertaining  in  the  first  instance  to  the  second  subcommittee  of  the 
second  committee  of  the  Conference.  This  subcommittee  was 
charged  with  the  revision  of  the  declaration  concerning  the  laws  and 
customs  of  war,  prepared  in  1784  by  the  Conference  of  Brussels,  but 
never  ratified.  It  is  the  subject  indicated  by  article  number  seven  of 
the  circular  of  Count  Mouravieff  of  December  30,  1898.  Although 
the  work  of  the  Conference  of  Brussels  was  mentioned  in  this  cir- 
cular, previous  publication  of  a  code  of  what  might  be  called  the 
laws  and  customs  of  war  had  been  made  in  General  Order  No.  100, 
issued  from  the  Adjutant-General's  Office  of  the  United  States  Army 
in  1863,  having  been  prepared  by  Dr.  Francis  Lieber  of  Columbia 
University.  A  graceful  allusion  to  this  publication  and  acknowledg- 
ment of  its  value  wa^  made  by  the  chairman  of  the  subcommittee, 
M.  de  Martens  of  Rus^^ia,  at  one  of  its  sessions. 


'Holls,  op.  cit.,  p.  515;  Scott,  op.  cit.,  vol.  ii.  p.  46. 


46 


THE    HAGUE    CONFERENft   OF    1899 


A  code  of  the  "laws  and  customs  of  war  on  land,"  comprising 
sixty  articles,  was  elaborated  by  the  subcommittee  and  by  the  Con- 
ference. This  code,  if  accepted  by  the  United  States,  would  take 
the  place  of  those  portions  of  the  present  instructions  for  the  govern- 
ment of  its  armies  in  the  field  which  are  covered  by  its  sixty  articles. 
It  would  not  completely  take  the  place  of  these  instructions  for  the 
reason  that  certain  subjects  relating  to  hostilities  are  omitted  there- 
from, some  because  of  their  delicacy,  such  as  retaliation,  and  reprisals, 
etc.,  others  because  they  relate  to  the  internal  administration  of  an 
army  and  to  the  methods  to  be  used  to  enforce  observation  of  the 
code,  as  by  penalties  for  violations.  An  important  example  of  this 
class  of  omissions  is  found  in  Article  46  of  the  United  States  instruc- 
tions (General  (3rder  100)  which  forbids,  under  severe  penalties,  offi- 
cers or  soldiers  from  making  use  of  their  position  or  power  in  a 
hostile  country  for  priv  te  commercial  transactions  even  of  such  na- 
ture as  would  otherwise  be  legitimate.  In  regard  to  the  omitted  sub- 
jects the  declaration  is  made  that  while  awaiting  the  establishment 
of  a  more  complete  code  of  the  laws  of  war,  populations  and  com- 
batants remain  under  the  protection  and  exactions  of  the  principles  of 
the  law  of  nations  as  it  results  from  established  usage,  from  the  rules 
of  humanity,  and  from  the  requirements  of  the  public  conscience. 

The  code  in  general  presents  that  advance  from  the  rules  of  Gen- 
eral Order  No.  ^^.  in  the  direction  of  effort  to  spare  the  sufferings 
of  the  populati.  f  invaded  and  occupied  countries,  to  limit  the  acts 
of  invaders  to  1  ;  required  by  military  necessities,  and  to  diminish 
what  are  ordinarily  known  as  the  evils  of  war,  which  might  be  ex- 
pected from  the  progress  of  nearly  forty  years'  thought  upon  the 
subject.  It  is  divided  into  four  sections  and  each  of  them  into  sev- 
eral chapters. 

Section  I,  of  three  chapters,  treats  of  the  personnel  of  the  bellig- 
erents. 

Chapter  I,  .Articles  1  to  30,  prescribes  what  persons  are  legitimate 
combatants  and  has  particular  reference  to  lezrc  en  masse. 

Article  2  represents  the  extreme  concession  to  unorganized  re- 
sistance in  prescribing  as  the  sole  condition  of  treatment  as  legitimate 
combatants  of  f)opulations  of  an  unoccupied  country  suddenly  in- 
vaded, without  time  for  organization,  and  taking  up  arms  in  its  de- 
fense, to  be  that  they  shall  observe  the  laws  and  customs  of  war. 
During  the  discussion  of  this  chapter  an  additional  article  was  pro- 


REPORT  OF  THE  AMERICAN  DELEGATION 


47 


posed  for  adoption  by  the  representative  of  Great  Britain,  to  the 
effect  that  nothing  in  it  should  be  understood  as  tending  to  diminish 
or  suppress  the  right  of  the  population  of  an  invaded  country  to  fulfil 
its  patriotic  duty  of  offering  to  the  invaders  by  all  legitimate  means 
the  most  strenuous  resistance.  The  article  was  warmly  supported  by 
the  representative  of  Switzerland,  but  was  just  as  decidedly  opposed 
by  the  representative  of  Germany.  The  proposed  article  was  with- 
drawn by  its  author,  under  appeaU  from  delegates  favoring  its  spirit 
but  deeming  it  superfluous  and  calculated  to  endanger  the  adoption 
of  the  portion  of  the  code  under  consideration.  It  is  the  opinion  of 
the  United  States  representative  that  the  withdrawal  was  wise,  in 
view  of  the  concession  in  Article  2  of  all  that  is  covered  by  the  one 

proposed. 

Chapter  II,  Articles  4  to  20,  treats  of  prisoners  of  war. 

Article  4  stipulates  that  their  personal  property,  with  the  exception 
of  arms,  horses  and  military  papers,  shall  remain  in  their  possession. 
The  case  is  not  specially  covered  of  large  sums  of  money  which  may 
be  found  on  the  persons  of  prisoners  or  in  their  prvate  luggage,  and 
referred  to  in  Article  72  of  General  Order  No.  100  in  such  a  way 
as  to  throw  doubt  upon  the  strictly  private  character  of  such  funds. 

Article  6  provides,  as  does  Article  76  of  General  Order  100,  that 
prisoners  of  war  may  be  required  to  perform  work,  but  it  goes  fur- 
ther, in  that  it  covers  the  fact  and  the  determination  of  the  rate  of 
payiiient  for  such  work  and  the  disposition  to  be  made  of  such  pay. 

Article  n  of  General  Order  No.  100,  which  provides  for  severe 
penalty,  even  for  death,  for  conspiracy  among  prisoners  of  war  to 
effect  a  united  or  general  escape  or  to  revolt  against  the  authority  of 
the  captors,  has  no  counterpart  in  the  new  code.  Article  12  of  the 
new  code  provides  that  in  case  of  breach  of  parole  the  offender  shall 
he  brought  to  trial,  but  it  does  not  prescribe  the  death  penalty  as  does 
Article  124  of  General  Order  No.  100. 

Articles  14.  15,  16  and  17  are  quite  new  in  their  scope.  They  pro- 
vide for  establishment  of  a  bureau  of  information  in  regard  to  pris- 
oners of  war  and  prescribe  its  duties :  also  for  the  extension,  under 
necessary  guarantees,  of  all  proper  facilities  to  members  of  duly 
organized  prisoners'  aid  societies;  for  franking  privileges  for  the 
bureau  of  information:  for  exemption  from  postal  and  customs 
char-cs  of  letters,  orders,  money,  and  packages  of  or  for  prisoners 
of  war,  and  of  the  possible  advance  to  officers  of  the  pay  allowed 


48 


THR    IIACUE    CONFERENCE  OF    1899 


by  their  Government  in  such  situation,  to  be  afterward  repaid  uy 
the  latter.  It  will  be  observed  that  in  case  of  adoption  of  the  code 
by  the  United  States,  enabling  legislation  by  Congress  will  be  required 
for  the  operation  of  these  four  articles. 

Chapter  HI,  Article  21,  treats  of  the  sick  and  wounded,  and  it  con- 
tains only  a  reference  to  the  Geneva  Convention. 

Section  II.  of  five  chapters,  treats  of  acts  of  war.  Chapter  I,  Ar- 
ticles 22  and  23,  ref  ;  to  legitimate  means  of  injuring  the  enemy,  tn 
sieges,  and  to  boml,        -lents. 

.Article  23  prohibi  the  issue  of  the  declaration  hat  no  quarter 
will  be  given,  not  makmg  allowance  for  the  special  ca.^e  contemplated 
in  .\rticle  60  of  tJeneral  Order  No.  100,  of  a  commander  in  great 
straits,  such  that  his  own  salvation  makes  it  impossible  for  him  to 
encumber  himself  with  prisoners,  nor  for  the  retaliatory  measures  con- 
templated by  Articles  61,  62,  63,  and  66  of  General  Order  No.  100. 
The  death  penalty  prescribed  by  Article  71  of  the  Order,  for  killing 
or  wounding  a  disabled  enemy,  is  not  found  among  the  provisions  of 
the  code. 

Article  23  also  forbids  the  destruction  or  seizure  of  private  property 
except  wiien  imperiously  required  by  the  necessities  of  war.  During 
the  <li>cussion  of  this  prohibition  the  United  States  representative 
stated  the  desire  of  his  Government  that  it  should  extend  to  private 
property  both  upon  land  and  sea,  and  that  the  revision  of  the  declara- 
tion of  the  Conference  of  Brnssels,  which  the  Powers  had  been  in- 
vited to  make,  had  been  understood  to  properly  include  this  exten- 
sion, that  he  could  not  accept  the  decision  of  the  cliairman  that  the 
subcommittee  was  not  competent  to  consider  it,  because  of  the 
limitation  of  the  revision  strictly  to  the  subject  of  land  warfare,  al- 
though he  would  not  insist  upon  an  immediate  decision  as  to  such 
competence,  asking  simply  that  the  subject  be  left  open  for  further 
treatment  by  the  full  committee  and  by  the  Conference.  The  method 
of  after-treatment,  by  which  the  subject  was  relegated  to  the  con- 
sideration of  a  future  Conference,  is  familiar  to  the  commission. 

.Article  2.S  forbids  the  bombardment  of  unprotected  cities.  It  w:i< 
proposed  by  the  Italian  representative  tli.it  the  interdiction  shouM 
extend  to  bombardment  from  the  sea  as  well  as  from  the  land, 
but  upon  the  manifestation  of  o])position  to  this  extension  action  w.i^ 
limited  to  the  expression  of  a  hope  that  the  subject  would  be  coii- 
-idered  by  a  future  conference;  the  representative  of  Great   Brifniii 


KEPOKT  OF  Tin:  AMERICAN   DELEGATION 


49 


abstaining  from  this  expression  because  of  lack  of  instruction  upon 
tile  subject. 

Chapter  II,  Articles  29  to  M,  treats  of  spies.  It  does  not  prescribe 
the  punishment  to  be  inflicted  in  case  of  capture. 

Chapter  III,  Articles  32  to  34,  refers  to  flags  of  truce. 

Chapter  IV,  Article  35,  to  capitulations. 

Chapter  V,  Articles  3(j  Id  41,  to  armistices. 

Section  HI,  of  a  single  chapter,  Articles  43  to  46,  treats  of  the 
delicate  subject  of  military  authority  upon  hostile  territory.  The 
omission  of  some  of  its  provisions  was  urged  by  the  representativjs 
of  r.elgium.  upon  the  ground  that  they  had  the  character  of  sanc- 
tioning in  advance  rights  of  an  invader  upon  the  soil  and  of  thus 
organizing  the  r.yim,-  of  defeat ;  that  rather  than  to  do  this  it  woiiM 
be  better  for  the  population  of  such  territory  to  rest  under  the  gen- 
eral principle  of  the  law  of  nations.  The  provisions  were  retained 
upon  the  theory  that,  while  not  acknowledging  the  right,  the  possible 
fact  had  to  be  admitted  and  that  wise  provision  required  that  proper 
measures  of  protection  for  the  population  and  of  restrictions  u|)on  the 
occupying  force  should  be  taken  in  advance. 

Article  43  is  stronger  in  its  terms  than  Article  3  of  General  Order 
No.  100,  in  requiring  respect  by  the  occupying  force,  unless  abso- 
lutely prevented,  of  the  laws  in  force  in  the  occupied  territory. 

Article  26  of  General  Order  No.  100,  in  regard  to  an  oat'    of  alle- 
giance and  fidelity  on  the  part  of  magistrates  and  other  civil  officers, 
may   require  modification    in   view   of  .Article  45   of  the   new  code, 
although  this  may  possibly  not  be  necessary,  as  the  latter  article  men 
tions  only  populations. 

-Articles  48  to  54  refer  to  contributions  and  requisitions  in  money 
and  kind ;  they  are  more  detailed  in  their  provisions  than  the  articles 
of  General  Order  N'o.  100  referring  to  the  same  subject,  but  they 
do  not  difl^er  therefrom  in  spirit  and  general  purport.  They  express 
the  idea  that  such  contributions  are  not  to  be  made  for  the  purpose 
of  increasing  the  wealth  of  the  invader.  The  provision  that  the  shore 
ends  of  submarine  cables  might  be  treated  in  accordance  with  the 
necessities  of  the  occupying  force  and  th.it  restitution  should  be  made 
and  rlamages  regulated  at  the  conclusion  of  peace,  after  having  at 
first  found  entry  into  the  code,  was  afterward  stricken  out  at  the 
instance  of  the  Rritish  representative. 

Article  46  forbids  the  seizure  or  destruction  of  works  of  art  or 


til 


50  THE    HAGUE    CONFEI'.ENCE  OF    1899 

similar  objects,  and  is  in  this  respect  more  restrictive  than  Article 
36  of  General  Order  No.  100,  which  permits  the  removal  of  such 
articles  for  the  benefit  of  the  Government  of  the  occupying  army  and 
regulates  the  ultimate  settlement  of   their  ownership  to  the  treaty 

of  peace.  r  .   „ 

Section  IV,  of  a  single  chapter,  Articles  57  to  60,  treats  of  bellig- 
erents confined,  and  of  sick  and  wounded  cared  for,  upon  neutral 
territory,  a  subject  not  referred  to  in  General  Order  No.  100.  It  pro- 
vides g':nerally  that  obligation  is  imposed  upon  the  neutral  to  see 
that  such  persons  shall  not  take  further  part  in  the  war,  but  atten- 
tion was  invited  by  the  United  States  representative  to  the  fact  that 
for  sick  and  wounded  simply  passing  through  neutral  territory  on 
their  way  to  their  own  country,  no  such  provision  is  made.  Because 
of  anticipated  difficulty  in  securing  harmony  or  for  other  reasons  the 
committee  did  not  decide  the  question,  and  a  decision  was  not  de- 
manded by  the  United  States  representative,  who  could  see  no  direct 
interest  of  the  United  States  in  question,  which  he  had  raised  only 
in  the  interest  of  good  work.  During  the  progress  of  the  work  of 
the  subcommittee  expression  was  made,  upon  the  initiative  of  the 
representative  of  Luxemburg,  of  the  hope  that  the  question  of  the 
regulation  of  the  rights  and  duties  of  neutrals  would  form  part  of 
the  program  of  an  early  conference. 

Foreign  ambassadors,  ministers,  other  diplomatic  agents  and  con- 
suls, whose  treatment  is  regulated  by  Articles  8,  9  and  87  of  Gen- 
eral Order  No.  100.  are  not  mentioned  in  the  new  code.  It  is  also 
silent  upon  the  subject  of  guerillas,  armed  prowlers,  war  rebels, 
treachery,  war  traitors  and  guides,  treated  in  Sections  4  and  5  of 
General  Order  No.  100. 

It  is  not  attempted  to  make  this  report  a  full  digest  of  the  pro- 
posed code  or  a  complete  exposition  of  its  relations  with  the  existing 
instnictions  for  the  government  of  the  armies  of  the  United  States 
in  the  field— the  object  is  to  present  such  general  summary  as  may 
indicate  that  the  convention  containing  the  code  is  a  proper  one  for 
the  commission  to  recommend  the  acceptance  of  by  the  Government 
of  the  United  States,  and  also  that  because  of  the  extent  and  nii- 
portance  of  the  stibject  snch  acceptance  should  be  preceded  by  a 
careful  examination  of  the  code  by  the  department  of  military  law. 
The  agreement  in  the  convention  to  issue  to  the  armies  of  the  signa- 
tory Powers  instructions  in  conformity  with  the  code,  is  not  under- 


RETORT  OF  THE  AMERICAN  DELEGATION 


51 


Stood  to  mean  that  such  instructions  shall  contain  nothing  more  than 
is  found  in  the  code  itself,  but  that  all  the  provisions  of  the  code  shall 
be  met  and  none  of  them  violated  in  such  instructions.  A  very  com- 
plete discussion  of  the  articles  of  the  code  is  contained  in  the  report 
of  Mr.  Rolin,  the  official  reporter  of  the  subcommittee,  which  is' 
hereto  annexed  and  marked  C 

William  Crozier, 
Captain  of  Ordnance,  U.  S.  A., 
Commissioner. 


RETORTS  OF  MESSRS.  WHITE,  LOW  AND  HOLLS  TO  THE  AMERICAN  DELE- 
GATION TO  THE  FIRST  HAGUE  CONFERENCE.  REGARDING  THE  WORK 
OF    THE    THIRD    COMMITTEE    OF    THE    CONFERENCE' 

The  Hague,  July  j?/,  iHw. 

Commission  of  the  United  States  of  America  to  the  International 
Conference  at  The  Hague. 

Gentlemen  :  The  undersigned  members  of  the  third  commission 
of  the  Conference,  to  which  was  referred  the  matter  of  arbitration 
and  mediation,  have  the  honor  of  submitting  the  following  report 
regarding  the  work  of  the  committee: 

The  committee  on  arbitration  was  appointed  at  the  second  session 
of  the  Conference,  held  May  20,  1899;  and  on  Tuesday,  May  23,  the 
committee  met  for  the  first  time  under  the  chairmanship  of  M.  Lcnn 
Bijurgeois  of  France.  It  then  discussed  merely  routine  business  and 
adjourned  until  Friday.  May  25.  .At  this  meeting  it  was  decided  to 
appoint  a  subcommittee  called  the  comite  d'c.ramen,  to  consist  of 
ciffht  members,  for  the  purpose  of  drafting  a  plan  for  international 
arhitration  and  mediation.  The  membership  of  the  comite  d'r.vamcn 
was  proposed  by  the  so-railed  bureau  of  the  full  committee,  consist- 
ing of  the  president,  honorary  presidents,  and  the  vice-president,  as 
follows:  M.  Chevaiit-r  De-camps  of  Belgium.  M.  .\sser  of  the  Xetlicr- 
lands,  M.  de  Martens  of  RiLssia,  Professor  Zorn  of  Germany.  Profes- 
sor Lamninsch  of  Austria.  M.  Odier  of  Switzerland,  Baron  d'Estour- 
nclles  de  Constant  of  France,  and  Mr.  Holls  of  the  United  States  of 
America.     The   Honorary   Presidents   of -the   Committee,   Sir   Julian 

'N'ot  printed. 

-Holl?,  cf.i-it..  p.  523:  Scott,  op.  at.,  vol    ii.  p.  SI. 


I 


52 


TlIK    IIAC.I'K    CDNFKKKNIK    OF 


1899 


Tauncefote  of  England,  Count  Nipra  of  Italy,  also  took  part  in  the 
work  of  the  comiU-  d'c.vamen.  as  well  as  the  president  of  the  Con- 
ference. Baron  tie  .Staal  of  Russia.  The  comUi-  dcxaim-n  held 
eighteen  working  sessions,  all  of  its  nienihers  heing  present  at  ever)' 
session,  with  two  exceptions  caused  by  tiie  absence  of  M.  de  Martens 
at  the  Venezuelan  arbitration  in  Paris. 

On  July  ".  1899.  the  comilc  d'e.ramen  presented  to  the  full  com- 
mittee the  project  for  tiie  peacealilc  settlement  of  international  dis- 
putes, which,  after  discussion  in  the  full  ccnumittee  and  in  the  Con- 
ference, was.  on  the  2.Sth  of  July,  unanimously  adopted.  A  copy 
of  this  convention  is  annexed  to  this  report.'  It  consists  of  sixty-one 
articles,  of  which  the  first  contains  a  general  declaration  regarding 
the  maintenance  of  peace.  Articles  2  to  8  inclusive  relate  to  g(X)d 
offices  and  mediation;  Articles  9  to  14.  to  international  commissions 
of  inquiry:  Articles  15  to  20,  to  arbitml  justice  in  general;  Articles 
30  to  57,  to  the  procedure  before  the  said  court ;  and  Articles  58  to 
61,  to  the  ratification  of  the  convention  and  the  like.  All  of  these 
articles  .and  the  consider.atinns  which  led  to  their  adoption  have  been 
carefully  discussed,  on  behalf  of  the  committee,  by  its  reporter.  M. 
Descamps,  wbo-;e  rejKjrt  is  annexed  hereto  ' 

.•\t  the  opening  of  the  first  meeting  of  the  third  committee  of  the 
Conference  the  Russians  proposed  a  carefuUy-worked-out  scheme: 

1.  For  good  offices  and  mediation. 

2.  For  arbitrations  od  hoc.  to  which  was  annexed  a  code  for  ar- 
bitral procedure. 

3.  For  international  imiuiries. 

Sir  Julian  Pannccfote  having  been  given  the  floor  as  one  of  the 
vice-presidents  of  the  Conference,  at  once  suggested  a  vole  upon  the 
principle  of  a  permanent  tribunal  for  international  arbitrations. 

The  Russians,  thereupon,  instantly  gave  notice  that  they  also  \w\ 
a  plan  for  a  permanent  court  which  would  be  submitted  in  due  e()ur>e 
It  was  thought  best  to  discuss  the  principles  of  a  permaient  court 
only  in  connection  with  a  careful  discussion  of  definite  pl.nns.  and  it 
was  therefore  then  resolved  to  send  all  plans  bearing  f)n  this  subject 
to  the  comilc  d'exanten.  together  with  the  Russian  proposals  for  goo.l 
offices  and  mediation. 

.\t  tlie  meeting  of  the  comnrttee.  held  Wednesday,  May  31,  tb<' 
American  project  for  an  international  tribunal  of  arbitration  was  i)rc- 


>Not  printed 


HKI-ORT  DF  TUF.  AMRKICAN   DKLEdATION 


5.1 


sfiilcd,  through  tlif  president  of  the  Conference,  M.  ile  Staal.  At 
utxjut  the  same  time,  or  just  before,  llie  Enj^hsh  atul  the  Russian 
plans  for  a  permanent  trihunal  were  also  submittetl.  In  the  comiti- 
d'cvamen  the  plan  proiKJsed  by  Sir  Juhan  i'auncefote  was  taken,  by 
the  consent  of  the  Russians  and  Americans,  as  the  basi«,  of  the  com- 
mittee's work.  Ihis  plan,  however,  has  been  jjreatly  mochfied  and 
enlarged,  by  provisions  from  both  the  American  and  the  Kus^lan 
plans,  and  also  by  suggestion^  made  in  committee.  The  plan  adopted 
by  the  Conference,  therefore,  while  foundeil  on  the  I'.niish  prop<isals 
so  far  as  tlie  form  oi  the  I'ermanent  Court  is  concerned,  is  really 
the  work  of  the  cuntitc  d'cxamrn. 

Compared  with  the  original  .American  project,  it  differ  from  it 
essentially  in  the  following  particulars.  The  fundamental  idea  of  the 
American  plan  was  a  court  which  should  not  only  be  permanent  but 
continuous  in  its  functions,  consisting  of  not  less  than  nine  judges, 
from  whose  number  special  benches  might  Ik-  chosen  by  the  litigants ; 
provision  was  also  expressly  made  for  the  |X)Ssibility  of  a  session 
of  the  entire  tribunal  at  one  time.  The  latter  idea  was  absolutelv 
unaccept.ible  to  most  of  the  Continental  States.  One  objection  raised 
to  it  was  that  there  had  not  yet  been  sufficient  experience  in  arbitra- 
tions to  warrant  a  continuously  sitting  tribunal,  so  that  if  one  were 
provided  it  would  probably  have  nothing  to  do  during  the  greater 
(Kjrtion  of  the  year,  and  thus  bec(mie  an  object  of  criticism,  if  not 
of  ridicule.  Another  objection  found  expression  in  the  fear  that 
such  a  tribunal  would  assume  a  dignity  and  importance  for  which 
the  nations  were  not  yet  prepared.  The  expense  involved  in  the  pay- 
ment of  salaries  to  judges  whose  time  would  be  taken,  was  also  a 
consideration  of  no  little  importance,  and  the  payment  of  permanent 
salaries  was  looked  upon  as  being  likely  to  emphasize  the  undesirable 
spectacle  of  an  international  court  with  perhaps  little  to  do.  The 
plan  of  Sir  Julian  Pa:  ncefote  happily  avoided  these  difficulties,  while 
it  yet  provided  a  permanent  court  not  altogether  unlike  the  supreme 
court  of  the  State  of  New  York,  which  consists  of  a  comparatively 
large  numl)er  of  judges  who  never  sit  as  a  body  but  who  are  con- 
stantly exercising  judicial  function-^,  either  alone  or  in  separate  tri- 
bunals made  up  from  among  their  number.  This  organization  appears 
in  the  i)erfected  plan  adopted  by  the  Conference. 

The  .American  plan  further  proposed  that  the  tribunal   for  which 
it  provided  should  itself  appoint  its  secretary  or  clerk  and  supervise 


ill 

I 


A^^ 


54 


TICK     l(A(il 


n.NFF.RF.NCF-   01     I 


S99 


the  ailministr.ition  of  its  tv.  n  ir.ireati  or  record  oftice.  VVlwti  the  idea 
of  a  coiuinii.Mi?.ly  sitting  trjlnjnal  was  abanduned.  another  method  ol 
adninii>tratioii  of  the  bureau  or  record  oftice  was  made  necessar). 
Accordingly,  the  projwsal  which  lias  Iwen  adopted  provides  that  as 
>()on  as  iiin^  of  the  Towers  who  have  acceded  to  this  convention  iiave 
ratified  it,  the  representatives  of  the  signatory  I'owers  accredited  to 
the  Liovcrnnient  of  the  Netherlands  will  meet  under  the  presidency 
of  the  Minister  of  Foreign  Aflairs  of  the  Netherlands  and  organize 
themselves  as  a  Permanent  louncil  of  Administration,  whose  first 
duty  it  will  be  to  create  a  i)ermanent  Bureau  of  Arbitration.  The 
Council  of  Administration  will  appoint  a  secretary  general,  secure 
quarters  for  the  Court  and  such  assistants  as  may  be  necessary,  in 
the  shape  of  archivists  and  other  officials  who  will  sit  in  permanence 
at  The  Hague,  and  who  will  constitute  the  working  staff  and  head- 
quarters of  the  international  system  of  arbitration.  The  Hague  was 
selected  as  the  seat  of  the  i>ermanent  tribunal,  by  common  consent, 
no  proposition  or  vote  favoring  any  other  place  having  been  received 

The  American  plan  provided  for  one  judge  from  each  adhering 
country.  The  British  proposal  suggested  two,  and  on  the  motion 
of  the  German  delegate  this  number  was  increased  to  not  more  than 
four.  The  German  delegation  stated  that  their  reason  for  proposing 
a  larger  number  was  that  the  Great  Powers,  at  least,  ought,  in  their 
opinion,  to  nominate  as  members  of  the  tribunal  men  of  eminence,  not 
only  in  law,  but  also  perhaps  a  (tii>lomat  and  perhaps  a  military  or 
naval  expert.  The  Powers  arc  not  restricted  to  their  own  citizens 
in  tlie  choice  of  judges,  and  two  or  more  Powers  may  unite  in  naming 
the  same  person.  The  judges  to  be  named  are  to  hold  office  for  sis 
years,  and  during  the  exercise  of  their  t.inctions  and  when  outside 
of  their  own  country  they  are  to  enjoy  (lii)lomafic  privileges  and  ini 
nuinities. 

In  place  of  the  provision  of  the  .\merican  proposal  that  the  tribunal 
itself  should  fix  its  own  rules  of  procedure,  the  committee  adopted 
a  code  of  procedure  proposed  by  the  Russian  delegation,  with  slight 
amendments.  This  code  is  almost  identic.-il  with  the  rules  of  pro- 
cedure adopted  for  the  British  and  Venezuela  court  of  arbitration, 
now  in  session  at  Paris.  The  authors  of  these  niles  were,  it  is  under- 
stood, M.  de  Martens.  President  of  the  Court,  Mr.  Justice  Brewer 
of  the  Uniu'd  States,  ,nid  Lord  Justice  Collins  of  Great  Britain. 

The  pn^ .  ision  contained  in  the  .American  plan  that  the  cases,  counter- 


KKPOHT  OK  THK  AMHRICAN   OKLFdATlON 


.->.•) 


cases,  deposition-,  arguments,  and  opii.  ons  of  the  Court  should,  after 
the  delivery  uf  the  jud^nnent,  be  at  the  disi)osition  of  anyone  wilhng 
to  pay  the  cost  of  transcription,  was,  by  common  consent,  left  as  an 
atlmiinstrative  detail  for  the  consideration  of  the  Council  of  Admin- 
istration. 

The  American  projHisal  that  every  case  submitted  to  the  tribunal 
must  be  accompanied  by  a  stipulation  signed  by  both  parties,  to  agree 
in  good  faith  to  abide  by  the  decision,  wiiich  was  also  a  feature  of 
the  Russian  proposals,  was  unanimously  adopted ;  as  was  aKo  the 
further  American  proposal  that  in  each  particular  case  the  bench 
of  judges  should,  by  preference,  l)e  selected  fmm  the  list  of  membt-rs 
of  the  tribunal.  The  comttc  d'examcn  was  uiiwilliiig  to  make  a  cate- 
gorical rule,  as  suggested  in  the  American  plan,  that  when  the  tri- 
bunal consisted  of  only  three  members  none  of  them  should  be  a 
native,  subject,  or  citizen  of  either  of  the  litigating  States,  but,  on  the 
other  hand,  the  American  objection  to  tribunals  consisting  of  only 
one  representative  of  each  litigating  State  and  one  ut.ipire  was 
embodied  in  the  provision  that,  except  in  case  of  an  agreement  to 
the  contrary,  the  tribunal  should,  in  all  cases,  consist  of  five  members, 
two  being  nominated  by  each  State,  the  four  to  choose  the  fifth.  This 
enables  the  parties  to  have  one  representative  each  on  the  l)ench. 
while  the  majority  of  the  tribunal  may,  nevertheless,  consist  of  en- 
tirely impartial  judges,  who  may  not  necessarily  agree  on  all  points 
with  either  side. 

The  American,  proposal  regarding  the  expenses  of  the  tribunal,  ttiat 
the  judges  should  be  paid  only  when  on  duty,  was  in  effci  t  adopted. 
The  American  proposal  was  the  only  one  which  contained  provision 
for  a  second  hearing  for  the  correction  of  manifest  errors.  This  pro- 
visiim  was  inserted  in  the  code  of  procedure  in  a  permissive  form, 
after  nuich  opposition. 

The  American  proposal  that  the  Convention  should  be  in  force  upon 
the  ratification  of  nine  States  was  adopted,  hut  the  restriction  as  to 
the  character  of  these  States,  contained  in  the  .■\merican  plan,  was 
emitted  as  unnecessary.  It  is  substantially  certain  that  .imong  the 
first  adhering  States  there  will  be  eight  European  or  American  Pow- 
ers, of  whom  at  least  four  have  been  signatory  Powers  of  the  Treaty 
'if  Pari-  of  1X56  Jt  should  be  obsen-td  here  that  this  description 
w.Ts  made  a  part  of  the  .American  plan,  only  in  order  tn  make  it  clear 
that  in  the  opinion  of  the  United  States  Government  the  confirm.'ition 


56 


THE    HAGUE    CONFERENCE   OF    1899 


of  a  certain  number  of  the  Great  Powers  was  essential  to  success. 

Tlic  one  ilistinctive  feature  of  the  American  plan  which  was  re- 
jected on  principle  was  that  providing  for  the  cooperation  of  the 
liighest  courts  of  each  country  in  the  selection  of  members  of  the 
Court  cf  Arbitration.  This  idea  proved  absolutely  unacceptable  to 
the  Continental  Powers  for  various  reasons,  which  have  been  stated 
to  the  department  in  our  dv^iiatch  Number  U).  There  is  no  highest 
court  for  the  entire  Empire  of  Austria-Hungary,  and  the  relations 
between  the  different  parts  of  the  Empire  are  not  calculated  to  make 
joint  action  by  the  two  highest  courts  practicable  or  desirable.  Thi^ 
is  also  true  of  Sweden  and  Norway.  In  Russia  the  highest  court 
consists  of  a  Senate  of  one  hundred  members,  whose  cooperation 
in  the  matter  of  apjwinlment  would  contradict  all  local  traditions. 
Besides  this,  the  organization  of  the  courts  of  nearly  all  Continental 
countries  is  based  upon  the  traditions  of  the  Roman  Law,  and  tho-e 
traditions  always  have  excluded  the  idea  of  any  action  on  the  part  of 
a  judicial  tribunal,  with  reference  to  the  selection  of  a  man  or  men 
for  any  particular  purpose,  fven  if  the  latter  were  judicial  in  its 
nature.  Furthermore,  in  sevi  large  European  States,  notably  Ger- 
many, the  rules  governing  the  practice  of  the  law  are  such  as  to  prevent 
the  members  of  the  highest  court  from  hav  l,'  any  knowledge  of  the 
ability  or  reputation  of  many  of  the  most  noted  lawyers  or  judges, 
since  no  one  is  allowed  to  practice  before  the  highest  court  unless 
Tie  is  a  resident  of  the  city  of  its  location,  and  a  member  of  its  par- 
ticular bar,  and  the  rules  providing  for  appeals  are  very  narrow  in 
their  limitations.  Under  these  circumstances,  the  members  of  tho-t 
courts  are  not,  like  our  Justices  of  the  Supreme  Court  of  the  I'nited 
States,  or  the  members  of  the  Privy  Council  of  Great  Britain,  ttie 
best  possible  advisers  with  reference  to  the  selection  of  creditable 
legal  representatives  upon  the  great  tribunal,  and  it  was  stated  that 
in  many  cases  they  were  about  the  last  authority  to  whom  the  ai)- 
pointing  Power  would  be  likely  to  turn  with  success  for  such  advice 
and  cooperation.  I'nder  these  circumstances,  the  adoption  of  thi^ 
feature  of  our  plan  was  hopeless  from  the  first ;  but,  out  of  courteous 
regard  for  the  United  States,  the  comitc  d'cxamen  directed  the  re- 
porter to  mention  the  importance  of  a  complete  disregard  of  political 
considerations  in  the  choice  of  members  of  the  Court. 

It   will  III-  ^eeit  that  nothing  in  the  projiosed  plan  or  organization 
of  the  permanent  tribunal  is  absolutely  contrary  to  the  fundamental 


REPORT  OF  THE  AMERICAN  DELEGATION 


57 


3 
I 

■h. 

i 
f 


ideas  set  forth  in  the  American  proposal,  and  the  code  of  procedure 
contains  nothing  contrary  to  the  principles  of  equity  pleading  in  En- 
glish or  American  courts.  In  view  of  the  fact  that  a  large  majority  of 
the  members  of  the  Arbitration  Court  must  necessarily  be  Europeans 
trained  in  the  principles  of  the  Roman  law,  it  has  been  deemed  im- 
portant from  the  first  to  secure  all  possible  guarantees  against  prac- 
tice or  procedure  which  would  put  nations  having  the  common  law 
as  the  basis  of  their  jurisprudence  at  a  disadvantage.  It  is  believed 
that  this  enu  has  been  successfully  accomplished. 

Attention  is  called  to  the  fact  that  the  entire  plan  for  the  tribunal 
anil  its  use  is  voluntary,  so  far  as  sovereign  States  are  concerned.  The 
only  seeming  exceptions  to  this  rule  are  contained  in  Article  1,  which 
provides  that  the  Signatory  Powers  agree  to  employ  their  efforts  for 
securing  the  pacific  regulation  of  international  differences;  and  Ar- 
ticle 27,  which  says  that  the  signatory  Powers  consider  it  to  be  a 
duty,  in  the  case  where  an  acute  conflict  threatens  to  break  out  between 
•-wo  or  more  of  them,  to  remind  those  latter  that  the  Permanent  Court 
is  open  to  them.  The  obligation  thus  imposed  is  not  legal  or  diplo- 
matic in  its  nature.  These  articles  merely  express  a  general  moral 
duty  for  the  performance  of  which  each  State  is  accountable  only  to 
itself.  In  order,  however,  to  make  assurance  doubly  sure  and  to 
Itave  no  doubt  whatever  of  the  meaning  of  the  convention,  af- 
fecting the  United  States  of  .America,  the  commission  made  the  fol- 
lowing declaration  in  the  full  session  of  the  Conference,  held  July  25 : 

The  delegation  of  the  United  States  of  Aiierica,  in  signing 
the  Convention  rcgtilating  the  peaceful  adjustment  of  interna- 
tional (lifTercnces.  as  proposed  by  the  International  Peace  Con- 
ference, makes  the  following  declaration: 

Nothing  contained  in  this  convention  shall  be  so  construed  as 
t()  require  the  United  States  of  .Xmerica  to  depart  from  its  tra- 
ditional pc>licy  of  not  intruding  upon,  interfering  with,  or  en- 
tangling ifself  in  the  political  (|uestions  or  policy  or  internal  ad- 
ministration of  any  foreign  State:  nor  shall  anything  contained 
in  the  said  Convention  be  construed  to  implv  a  relinqui-liment 
by  the  United  Stntes  of  America  of  its  traditional  attitude  toward 
jiurely  .Xnierican  questions. 

Under  the  reserve  of  this  declaration  the  United  States  delegates 
signed  the  .Arbitration  Convention  itself. 

Article  8  of  the  convention,  providing  for  a  special  form  of  the 
mediation,    was   proposed    individually   by    Mr.    Holls   of   the    United 


58 


THE    HAGUE   CONFERENCE   OF    1899 


States  commission.  It  is  fully  explained  in  the  report  of  M.  Descamps 
and  in  the  minutes  of  the  meeting  of  the  committee  at  which  it  was 
unanimously  adopted.  Being  purely  voluntary  in  its  character  it  is 
at  least  certain  that  it  conflicts  with  no  American  interest,  while,  on 
the  contrary,  it  is  hoped  that  in  particular  crises,  when  the  other 
means  provided  by  the  convention  of  keeping  or  restoring  peace 
have  failed,  it  may  prove  to  have  real  and  practical  value.  It  is  cer- 
tain that,  by  the  Continental  States  of  Europe,  it  has  been  exceed- 
ingly well  received. 

The  Convention  for  the  peaceful  adjustment  of  international  dif- 
ferences, if  ratified  by  the  Senate,  will  require  no  special  enabling 
legislation  on  the  part  of  Congress,  beyond  the  annual  appropriation 
of  a  sum  sufficient  to  pay  the  share  of  the  United  States  of  the  ex- 
penses of  the  Arbitration  Bureau  at  The  Hague.  It  is  provided  that 
these  expenses  shall  be  borne  by  the  signatory  Powers  in  the  same 
proportion  as  is  now  prescribed  by  the  World's  Postal  Convention,  so 
that  the  share,  even  of  a  great  Power,  will  be  very  small. 
All  of  which  is  most  respectfully  submitted. 

Andrew  D.  Whitk, 
Seth  Low, 
Frederick  W.  Holls. 


-I 


THE  HAGUE  CONFERENCE  OF  1907 

PRELIMINARY  DOCUMENTS 

the  secretary  of  state  of  the  united  states  to  the  american 
diplomatic  representatives  accredited  to  the  «)vernments 
signatory  to  the  acts  of  the  first  hague  conference' 

Department  of  State, 
Washington,  October  21,  IQ04. 

Sir:  The  I'eace  Conference  which  assembled  at  The  Hague  on 
May  18,  1899,  marked  an  epoch  in  the  history  of  nations.  Called  by 
His  Majesty  the  Emperor  of  Russia  to  discuss  the  problems  of  the 
maintenance  of  general  peace,  the  regulation  of  the  operations  of  war, 
and  the  lessening  of  the  burdens  which  preparedness  for  eventual  war 
entails  upon  modem  peoples,  its  labors  resulted  in  the  acceptance  by  the 
signatory  Powers  of  Conventions  for  the  peaceful  adjustment  of  inter- 
national difficulties  by  arbitration,  and  for  certain  humane  amend- 
ments to  the  laws  and  customs  of  war  i)y  land  and  sea.  A  great  work 
was  thus  accomplished  by  the  Conference,  while  other  phases  of  t'^e 
general  subject  were  left  to  discussion  by  another  conference  in  the 
near  future,  such  as  questions  affecting  the  rights  and  duties  of 
neutrals,  the  inviolability  of  private  property  in  naval  warfare,  and  the 
bombardment  of  ports,  towns,  and  villages  by  a  naval  force. 

Among  the  movements  which  prepared  the  minds  of  Governments 
for  an  accord  in  the  direction  of  assured  peace  among  men,  \  high 
place  may  fittingly  be  given  to  that  set  on  foot  by  the  Interparlia- 
mentary Union.  From  its  origin  in  the  suggestions  of  a  meml)er  of 
the  British  House  of  Commons,  in  1888.  it  developed  until  its  member- 
ship included  large  numbers  of  delegates  from  the  parliaments  of  the 
principal  nations,  pledged  to  exert  their  influence  toward  the  conclusion 
of  treaties  of  arbitration  between  nations  and  toward  the  accomplish- 
ment of  peace.     Its  atmual  conferences   have  notably   advanced  the 


'Fi>rci,jn  Relations  of  the  United  States,  1904.  p. 
p.  168. 


10;   .Scott,   op.   eit.,  vol.   ii 


60 


TIIK   HAGUE  CONFERENCE  OF   1907 


high  purposes  it  sought  to  realize.  Not  only  have  many  international 
treaties  of  arbitration  been  concluded,  but,  in  the  conference  held  in 
Holland  in  1894,  the  memorable  declaration  in  favor  of  a  Permanent 
Court  of  Arbitration  was  a  forenmner  of  the  most  important  achieve- 
ment of  the  Peace  Conference  of  The  Hague  in  1899. 

The  annual  conference  of  the  Interparliamentary  Union  was  held 
this  year  at  St.  Louis,  in  appropriate  connection  with  the  world's  fair. 
Its  deliberations  were  marked  by  the  same  noble  devotion  to  the  cause 
of  peace  and  to  the  welfare  of  humanity  which  had  inspired  its  former 
meetings.  By  unanimous  vote  of  delegates,  active  or  retired  members 
of  the  American  Congress,  and  of  every  parliament  in  Europe  with 
two  exceptions,  the  following  resolution  was  adopted : 

Whereas,  enlightened  public  opinion  and  mcKiern  civilization 
alike  demand  that  differences  between  nations  should  be  adjudi- 
cated and  settled  in  the  same  manner  as  disputes  between  indi- 
viduals are  adjudicated,  namely,  by  the  arbitrament  of  courts  in 
accordance  witii  recognized  principles  ot  law,  this  conference  re- 
quests the  several  Governments  of  the  world  to  send  delegates  to 
an  international  conference  to  be  held  at  a  time  and  place  to  be 
agreed  upon  by  them  for  the  purpose  of  considering: 

1.  The  questions  for  the  consideration  of  which  the  Conference 
at  The  Hague  expressed  a  wish  that  a  future  conference  be 
called. 

-'.  The  negotiations  of  arbitration  treaties  between  the  nations 
rei)resente(l  at  the  Conference  to  be  convened. 

S.  The  advisability  of  establishing  an  international  congress  to 
convene  periodically  for  the  discussion  of  international  question"^. 

-And  this  Conference  respectfully  and  cordially  requests  the 
President  of  the  L'nited  States  to  invite  all  the  nations  to  send 
representative^;  to  such  a  conference. 

On  Sci>teinber  24.  ultimo,  these  resolutions  were  presented  to  the 
President  by  a  numerous  dejintation  of  the  Interparliamentary  L'nion. 
The  President  accepted  the  charge  offered  to  him,  feeling  it  to  l)e  most 
appropn.ite  that  the  Executive  of  the  nation  which  had  welcomed  the 
conference  to  its  ho>pitality  should  give  voice  to  it;  imi)ressive  utter- 
ances in  a  cause  wiiich  the  .American  Ciovernmrnt  and  people  hold 
dear.  He  aiuK)unce<l  that  he  would  at  ;in  early  dav  invite  the  other 
nations,  parties  to  the  Hague  Conventions,  to  reassemt)le  with  a  vii  w 
to  pTishing  forward  toward  coni(>!etion  the  work  already  hegiui  at 
The  Hague  by  considering  the  (|iRstions  which  the  first  lOnfertuH 
had  left  unsettled  with  the  exprcs-.  provision  that  there  should  he  .i 
.second  Conference. 


PRELIMINARY   DOCUMENTS 


61 


1 


In  accepting  this  trust  the  President  was  not  unmindful  of  the  fact, 
so  vividly  brought  home  to  all  the  world,  that  a  great  war  is  now  in 
progress.  He  recalled  the  circumstance  that  at  the  time  when,  on 
August  24,  1898,  His  Majesty  the  Emperor  of  Russia  sent  forth  his 
invitations  to  the  nations  to  meet  in  the  interests  of  peace  the  {  iiited 
States  and  Spain  had  merely  halteil  in  their  struggle  to  devise  terms 
of  peace.  While  at  the  present  moment  no  armistice  between  the 
parties  now  contending  is  in  sight,  the  fact  of  an  existing  war  is  no 
reason  why  the  nations  should  relax  the  efforts  they  have  so  success- 
fully made  hitherto  toward  the  adoption  of  rules  of  conduct  which 
may  make  more  remote  the  chances  of  future  wars  between  them.  In 
1899  the  Conference  of  The  Hague  dealt  solely  with  the  larger  gen- 
eral problems  which  confront  all  nations,  and  assumed  no  function 
of  intervention  or  suggestion  in  the  settlement  of  the  terms  of  peace 
l)etween  the  United  States  and  Spain.  It  might  be  the  same  with  a 
reassembled  conference  at  the  present  time.  Its  efforts  would 
naturally  lie  in  the  direction  of  further  codification  of  the  universal 
ideas  of  right  and  justice  which  we  call  international  law ;  its  mission 
would  he  to  give  them  future  effect. 

The  1 'resident  directs  that  you  will  bring  the  foregoing  considera- 
tions to  the  attention  of  the  Minister  for  Foreign  Affairs  of  th'-  Tiov- 
emmeiit  to  which  you  are  accredited  and,  in  discreet  conference  with 
him,  ascertain  to  what  extent  that  Government  is  disposed  to  act  in 
the  matter. 

Should  liis  Excellency  invite  stiggestions  as  to  the  character  of  the 
questions  to  he  brought  before  the  proposed  Second  Peace  Conference, 
you  may  say  to  liim  that,  at  thi.^  time,  it  would  seem  premature  to 
couple  the  tentative  invitation  thus  extended  with  a  categorical  \no- 
gram  of  subjects  of  discussion.  It  is  only  by  comparison  of  views 
that  a  general  accord  can  be  reached  as  to  the  matters  to  be  considered 
by  the  new  conference.  It  is  desirable  that  in  the  formulation  of  a 
program  the  distinction  should  be  kept  clear  between  the  matters 
which  belong  to  the  province  of  international  law  and  those  which  are 
conventional  as  between  individual  Governments.  The  Final  Act  of 
Tiie  Hague  Conference,  dated  July  29,  1899,  kept  this  distinction 
clearly  in  sight.  .Among  the  broader  general  questions  affecting  the 
right  and  justice  of  the  relation  of  overeign  States  which  were  then 
relegated  to  a  future  conference  i\  ere  the  rights  and  duties  of  neutrals, 
the  inviolability  of  private  property  in  naval  warfare,  and  the  Iwm- 


62 


THE  HAGUE   CONFERENCE  OF   1907 


bardmcnt  of  ports,  towns,  and  villages  by  a  naval  force.  The  other 
matters  mentioned  in  the  Final  Act  take  the  form  of  suggestions  for 
consideration  by  interested  Governments. 

The  three  points  mentioned  cover  a  large  field.  The  first,  especially, 
touching  the  rights  and  duties  of  neutrals,  is  of  universal  importance. 
Its  rightful  disposition  affects  the  interests  and  well-being  of  all  the 
world.  The  neutral  is  something  more  than  an  onlooker.  His  acts 
of  omis-ion  or  commission  may  have  an  influence — indirect,  but 
tangible — on  a  war  actually  in  progress ;  whilst  on  the  other  hand  he 
may  suffer  from  the  exigencies  of  the  belligerents.  It  is  this  phase  of 
warfare  which  deeply  concerns  the  world  at  large.  Efforts  have  been 
made,  time  and  again,  to  formulate  niles  of  action  applicable  to  its 
more  material  aspects,  as  in  the  declarations  of  Paris.  As  recently  as 
April  28  of  this  year  the  Congress  of  the  United  States  adopted  a 
resolution  reading  thus: 

Resolved  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  it  is  the 
sense  of  the  Congress  of  the  United  States  that  it  is  desirable,  in 
the  interest  of  uniformity  of  action  by  the  maritime  States  of 
the  world  in  time  of  war,  that  the  President  endeavor  to  brini: 
about  an  understanding  among  the  principal  maritime  Powers 
with  a  view  of  incorporating  into  the  permanent  law  of  civilized 
nations  the  principle  of  the  exemption  of  all  private  property  at 
sea,  not  contraband  of  war,  from  capture  or  destruction  by  bel- 
ligerents. 

Approved.  April  28,  1904. 

Other  matters  closely  affecting  the  rights  of  neutrals  are  the  distinc- 
tion to  be  made  lietween  absolute  and  conditional  contraband  of  war. 
and  the  inviolability  of  the  official  and  private  correspondence  of  neu- 
trals. 

As  for  the  duties  of  neutrals  toward  the  belligerent,  the  field  i*^ 
scarcely  less  broad.  One  aspect  deserves  mention,  from  the  prominence 
it  has  acquired  during  recent  times,  namely,  the  treatment  due  to  refu- 
gee belligerent  ships  in  neutral  ports. 

It  m;iv  also  he  desirable  to  consider  and  adopt  a  procedure  by  which 
States  non-signatory  to  the  original  Acts  of  the  Hague  Conference 
may  become  adhering  parties. 

You  will  explain  to  liis  Excellency  the  Minister  of  Foreign  .-\ff.Tir- 
that  the  present  overture  for  a  second  conference  to  complete  the  post- 
poned work  of  the  First  Conference  is  not  designed  to  supersede  other 


PRELIMINARY   DOCIMF.NTS 


63 


calls  for  the  consideration  of  s|)ecial  topics,  such  as  the  proposition  of 
the  Government  of  the  Netherlands,  recently  issued,  to  assemble  for  the 
purpose  of  amending  the  provisions  of  the  existing  Hague  Convention 
with  resf>ect  to  hospital  ships.  Like  all  tentative  conventions,  that  one 
is  open  to  change  in  the  light  of  practical  experience,  and  the  fullest 
deliberation  is  ilesirable  to  that  end. 

Finally,  you  will  state  the  President's  desire  and  hope  that  the  un- 
dying meinorii  which  cling  around  The  Hague  as  the  cradle  of  the 
beneficent  work  which  had  its  beginning  in  1899  may  be  strengthened 
b\  holding  the  Second  Peace  Conference  in  that  historic  city. 

I  am,  sir,  etc.. 

John  H,^Y. 


I 

I 
I 


* 

1 


the  secretary  of  state  of  the  united  states  to  the  american 
rei'rfsentatives  accredited  to  the  r,overnments  signatory  to 
ihe  acts  of  the  first  hague  conference' 

Department  of  State, 
Washington,  December  j6,  1904. 

Sir:  Dy  the  circular  instruction  dated  October  21,  1904,  the  repre- 
seiiiatives  of  the  United  States  accredited  to  the  several  Ckivernmencs 
which  took  part  in  the  Peace  Conference  held  at  The  Hague  in  1899, 
and  which  joined  in  signing  the  Acts  thereof,  were  instructed  to  bring 
to  the  notice  of  those  (iovernments  certain  resolutions  adopted  by  the 
Interparliamentary  Union  at  its  annual  conference  held  at  St.  Louis 
in  September  last,  advocatinj;  he  assembling  of  a  Second  Peace  Con- 
ference 10  continue  the  work  of  the  First,  and  were  directed  to  ascer- 
tain to  what  extent  those  Governments  were  disposed  to  act  in  the 
matter. 

The  .eplies  so  far  received  indicate  that  the  proposition  has  been 
received  with  general  favor.  No  dissent  has  found  expression.  The 
Goveniments  of  Austria-Hungary.  Denmark,  France,  Germany,  Great 
Britain,  Italy,  Luxemburg,  Mexico,  the  Netherlands,  Portugal,  Rou- 
mania,  Spain,  Sweden  and  Norway,  and  Switzerland  exhibit  sympathy 
with  the  pur[)oses  of  the  proposal,  and  generally  accept  it  in  principle, 
with  the  reservation  in  most  cases  of  future  consideration  of  the  date 
cm  the  conference  and  the  program  of  subjects  for  discussion.     The 


'Horciyn  Relations  of  the  United  States.   1904.  p    13;   Scott.   ot>. 
p.   17J. 


.  i(  .   vol.    ii, 


64 


TlIK   HACtlF.  lONFERENCF.  OF   1907 


replies  of  Japan  and  Russia  conveyed  in  like  temis  a  friendly  recog- 
nition of  the  spirit  and  purjxises  of  the  invitation,  but  on  the  part  of 
Russia  the  reply  was  accompanied  by  the  statement  that  in  the  exist- 
ing condition  of  things  in  the  Far  East  it  would  not  be  practicable  for 
the  Imperial  Government,  at  this  moment,  to  take  part  in  such  a  con- 
ference. While  this  reply,  tending  as  it  does  to  cause  some  postpone- 
ment of  the  proposed  Second  Conference,  is  deeply  regretted,  the 
weight  of  the  motive  which  induces  it  is  recognized  by  this  Govern- 
ment and,  probably,  by  others.  Japan  made  the  reservation  only  that 
no  action  should  be  taken  by  the  conference  relative  to  the  present  war. 

Although  the  prospect  of  an  early  convocation  of  an  august  assembly 
of  representatives  of  the  nations  in  the  interest  of  peace  and  harmony 
among  them  is  deferred  for  the  time  being,  it  may  be  regarded  as  as- 
sured so  soon  as  the  interested  Powers  are  in  a  position  to  agree  upon 
a  date  and  place  of  meeting  and  to  join  in  the  formulation  of  a  general 
plan  for  discussion.  The  President  is  much  gratified  at  the  cordial 
reception  of  his  overtures.  He  feels  that  in  eliciting  the  common  senti- 
ment of  the  various  (iovernments  in  favor  of  the  principle  involved  and 
of  the  objects  sought  to  l>e  attained  a  notable  step  has  been  taken 
toward  tvi.iitn;d  siu-ii>>. 

Pending  a  definite  agreement  for  meeting  when  circumstances  shall 
permit,  it  seems  desirable  that  a  com])arison  of  views  should  be  had 
among  the  participants  as  to  the  scope  and  matter  of  the  subjects  to 
be  brought  before  the  Second  Conference.  The  invitation  put  forth 
by  the  Government  of  the  United  States  did  not  attempt  to  do  more 
than  indicate  the  general  topics  which  the  Final  Act  of  the  First  Con- 
ference of  The  Hague  relegated,  as  unfinished  matters,  to  considera- 
tion by  a  future  conference — adverting,  in  connection  with  the  im- 
portant subject  of  the  inviolability  of  private  property  in  naval  warfare, 
to  the  like  views  expressed  by  the  Congress  of  the  United  States  in 
its  resolution  adopted  .April  28,  1904,  with  the  added  suggestion  that  it 
may  l)e  <lesirable  to  consider  and  adopt  a  procedure  by  which  States 
non-signatory  to  the  original  Acts  of  the  Hague  Conference  may  be- 
come adhering  parties.  In  the  present  state  of  the  i)roject,  this  Gov- 
ernment is  still  indisposed  to  formulate  a  program.  In  view  of  the 
virtual  certainty  that  the  President's  suggestion  of  The  Hague  as  the 
place  of  meeting  of  a  Second  Peace  Conference  will  be  accepted  by 
all  the  interested  Powers,  and  in  view  also  of  the  fact  that  an  organized 
representation  of  the  signatories  of  the  Acts  of  1899  now  exists  at 


-i 


PRKLIMINARV    WW  UMKNTS 


65 


that  capital,  this  Government  feels  that  it  should  not  assume  the  ini- 
tiative in  drawing  up  a  program,  nor  preside  over  the  deliberations  of 
the  signatories  in  that  regard.  It  seems  to  the  President  that  the  higli 
tasit  he  undertook  in  seeking  to  bring  about  an  agreement  of  the  Pow- 
ers to  meet  in  a  Second  I'eace  Conference  is  virtually  accomplished  so 
far  as  it  is  approjiriate  for  him  to  act,  and  that,  with  the  general  ac- 
ceptance of  his  invitation  in  principle,  the  future  conduct  of  the  affair 
may  fitiv  follow  its  normal  channels.  To  this  end  it  is  suggested  that 
the  further  and  necessary  interchange  of  views  between  the  signa- 
tories of  the  -Acts  of  1809  be  effected  through  the  International  Bureau 
under  the  control  of  the  Permanent  Administrative  Council  of  The 
Hague.  It  is  l)elieved  that  in  this  way,  by  utilizing  the  central  repre- 
sentative agency  established  and  maintained  by  the  Powers  themse'ves, 
an  orderly  treatment  of  the  preliminary  consultations  may  be  insured 
and  the  way  left  clear  for  the  eventual  action  of  the  Government  of 
the  Netherlands  in  calling  a  renewed  conference  to  assemble  at  The 
Hague,  should  that  course  be  adopted. 

You  will  bring  this  communication  to  the  knowledge  of  the  Minister 
for  Foreign  Affairs  and  invite  consideration  of  the  suggestions  herein 
made. 

I  am,  etc., 

John  Hay. 


MEMORANItlM  FROM  THE  RUS.SIAN  KMBASSV  HANDEO  TO  THE  PRESIDENI 
OF  THE  UNITED  STATE.S,  SKPTEMBER  u.  1905,  PROPOSING  A  .SErONO 
PK.\CK   rONFFRFNCK    AT   TlIF    !l  \(,KK' 

In  view  of  the  termination,  with  the  cordial  cooperation  of  the  Presi- 
dent of  the  I'nited  States,  of  the  war  and  of  the  conclusion  of  peace 
l)etween  Russia  and  Japan,  His  Majesty  the  Emperor,  as  initiator  of 
the  International  Peace  Conference  of  1899,  holds  that  a  favorable 
moment  has  now  come  for  the  further  development  and  for  the  sys- 
tematizing of  tile  labors  of  that  international  conference.  With  this 
end  in  view  and  being  assured  in  advance  of  the  sympathy  of  Presi- 
dent Roosevelt,  who  has  already,  last  year,  pronounced  himself  in 
favor  of  such  a  project.  His  Majesty  desires  to  approach  him  with  a 
proposal  to  the  effect  th.it  the  Government  of  the  United  States  take 

'Fnreiyn  Relations  of  the  United  Stales,  1905,  p.  828. 


66 


THE    llA(.t'E  lONFEKENCE  OF    19C'7 


part  in  a  new  intematidnal  conference  wliich  could  \ie  called  togetlur 
at  The  1'  Riie  as  soon  as  favor.il)lc  replies  could  be  secured  from  all 
the  other  States  to  which  a  similar  proiK)sal  will  be  made  As  the 
course  of  the  late  war  has  jjiven  rise  to  a  numlwr  of  questions  which 
are  of  the  greatest  importance  and  closely  related  to  the  Acts  of  the 
First  Conference,  the  plenipotentiaries  of  Russia  at  the  future  meetuiK 
will  lay  before  the  conferciuc  a  detailed  pro(,'rm  which  could  '■crve 
as  a  starting  point  for  its  delil><ration>; 


TUP.  RUSSIAN   AMBASSADOR  TO  THE  SECRETARY  OF  STATE  PROPOSINd  THE 
I'HCKIRAM  OK    THE  SECOND  CONFERENCE* 

luf  lAL  Embassy  of  Russia. 
Washingto  ,  ^pril  ;.'.  iqo6. 
Mr.  Secretary  of  State:  When  it  assumed  the  initiative  of  calling 
a  Second  F^eace  Conference,  the  Imperial  ( .ovemment  had  in  view  the 
necessity  of  further  developing  the  humanitarian  principles  on  which 
was  based  the  work  accomplished  by  the  great  international  assem- 
blage of  im> 

.•\t  the  -same  time,  it  deemed  it  expedient  to  enlarge  as  much  as  pos- 
sible the  niimlHT  of  States  participating  in  the  labors  of  the  contem- 
plated confeience.  and  the  alacrity  with  which  the  call  was  answered 
bears  witness  ;o  the  depth  and  breadth  of  the  present  sentiment  of 
solidarity  for  t.ie  .ipplication  of  ideas  aiming  at  the  good  of  all 
mankind. 

The  First  Conference  separated  in  the  firm  l)elief  that  its  labors 
would  subseriui'iitly  be  perfected  from  the  effect  of  the  regular  progro- 
of  enlightenment  among  the  nations  and  abreast  of  the  results  acquircil 
from  experience.  Its  most  important  creation,  the  International  Court 
of  .\rbitration,  is  an  institution  that  has  already  proved  its  worth  and 
brought  together,  for  the  g<iO(l  of  all,  an  afcopagus  of  jurists  win 
command  the  respect  of  the  world.  Ht  w  much  good  could  be  accom- 
plished I'v  international  commissions  of  in(]uiry  toward  the  settlement 
of  dispute^  between  States  has  also  been  shown. 

There  are,  however,  certain  improvements  to  be  made  in  the  Con- 
vention relative  to  the  pacific  settlement  of  international  disputes.    Fol- 


ifor.-iyn   Kelations  of  the  I  mud  States.  1906,  vol.  ii.  p.  1629;   Scctt.  rf. 
vol.  ii,  p.   17.x 


f  r. 


PREI-IMINAHY   IHill  Ml  NTS 


67 


lowiiijj  icccnt  arliiiratums,  the  jurists  asscinhUd  in  court  have  raised 


-< 


certain  (|Ucstions  cif  ditail.s  which  shouhl  he  acted  u(K)n  li 


<lil 


infj  tr 


the  said  L'onventinn  the  necessary  aniplificatioiis.     It  would  seem  es- 
I  I)ecially  desirable  to  lay  down  fixed  |irinci|)lcs  in  rejjard  ti>  the  ii>.e  of 

languages  in  the  proccedinKs  in  view  of  the  difficulties  that  may  arise  in 
the  ftiiitre  as  the  cases  referred  to  arbitral  jurisdiction  multiply.  The 
modus  of<erandi  of  international  commissions  cif  inquiry  would  likewise 
be  open  to  improvement. 

.\s  regards  the  regulating  of  the  laws  and  customs  of  war  on  land, 
the  |)rovisions  established  by  the  First  Conference  ought  also  to  be 
completed  and  defined,  so  as  to  remove  all  misapi)rehejisions. 

As  for  maritime  warfare,  in  regard  to  which  the  laws  and  customs 
of  the  several  countries  tliffer  on  certain  iK)ints,  it  is  necessary  to  es- 
tablish fixed  rules  in  keeping  with  the  exigencies  of  the  rights  of  bel- 
liirerents  and  the  interests  of  neutrals. 

.\  convention  bearing  im  these  subjects  should  be  framed  and  would 
constitute  one  of  the  most  prominent  parts  of  the  tasks  devolved  ujH)n 
the  forthcoming  conference. 
%  Holding,  therefore,  that  there  is  ,it  present  occasion  only  to  examine 

(|ni'stions  that  dematnl  special  attention  as  being  the  outcome  of  the 
e.N  crience  of  recent  years,  withmit  touching  ujKin  those  that  might 
have  reference  to  the  limitation  of  military  or  naval  forces,  the  Im- 
perial (iovernment  proposes  for  the  program  of  the  contemplated  meet- 
ing the  following  main  points ; 


1.  Improvements  to  be  made  in  the  [jrovision*^  of  the  Conven- 
tion relative  to  the  pacific  settlement  of  international  disputes  as 
regards  the  Court  of  .Vrbitration  and  the  international  commis- 
sions of  inquiry. 

2.  .Xdditions  to  he  made  to  the  provisions  of  the  Convention  of 
IS"^*"'  relative  to  the  law-  .ind  customs  of  war  on  land— among 
oth'Ts,  those  concerning  the  oi)ening  of  hostilities,  the  rights  of 
lieu  als  on  land,  etc.  Declarations  of  18^:  one  of  these  having 
expired,  question  of  its  being  revived. 

.S.  Framing  of  a  convention  relative  to  the  laws  and  customs  of 
maritime  warfare,  concerning — 

The  special  operations  of  maritime  warfare,  such  as  the  bom- 
bardment of  ports,  cities,  and  villages  by  a  naval  force;  the  lay- 
ing of  torpedoes,  etc. ; 

The  transformation  of  merchant  vessels  into  war-ships: 

Tile  private  property  of  belligerents  at  sea: 

The  length  of  time  to  be  granted  to  merchant  ships  for  their 


*j8  Tlir    IIAGIIF.  roNFHRENrK  OF   IW/ 

departure  from  jiorts  nf  neutrals  or  of  the  enemy  after  the  oiKnin^; 
of  liostilitit's  ; 

I'lic  rij,'tits  ami  diitiis  of  neutrals  at  sea,  amoiiff  others,  the  ques- 
tioii>  ii{  contraband,  the  rules  applicable  to  belligerent  vessels  in 
neutral  [xirts;  destruction,  iti  case  of  jr?  major,  of  neutral  nier- 
ciiant  vessels  captured  as  prizes ; 

In  the  said  convention  to  be  drafted,  there  would  \k-  introduced 
the  provisions  relative  to  war  on  land  that  wotdd  be  also  appli- 
cable to  maritime  warfare. 

4.  Additions  to  be  made  to  the  ("onvention  of  18'>>  i  i.  ida|)- 
tation  to  maritime  warfare  of  the  principles  of  ti  ha  .  t'on- 

vcntion  of  1864. 


As  was  the  case  at  the  (."onference  of  I8W,  it  w<  ■  i  n  cli  <m  .'  r 
stood  that  the  deliberations  of  the  contemplatet'  '  .  ,  '.  -b  1  '  >  , 
deal  with  the  jwlitical  relations  of  the  several  .'*    '.  ih        ii. 

of  thintrs  established  by  treaties,  or  in  general  '  '  i    mi    -  '   ■.    '  >      il: 
not  directly  conic  within  the  profjram  a<lopte<l  iii    cei         ■  .m.- 

The  ImiJerial  (lovernmcnt  desires  distinctly  to    '  it-   'I,  ai 

this  program  and  the  eventual  acceptance  of  the  sc  cr;  ,.'.»,. 
do  not  prejudge  the  opinion  that  may  be  delivered  in  tii.-  c  i  T  •'-'  'ii 
regard  to  the  solving  of  the  questions  brought  up  for    I.  '  ■  .     1' 

would  likewise  be  for  the  contemplated  meeting  to  decide  as  u>  niw  imlrr 
of  the  questions  to  be  examined  and  the  form  to  be  given  to  the  deci- 
sions reached  as  to  whether  it  should  be  deemed  preferable  to  incliidt- 
some  of  them  in  new  conventions  or  to  apjiend  them,  as  additions,  t" 
conventions  already  existing. 

In  f(jrmulating  the  above-mentioned  program,  the  Imi>erial  Goverii- 
mtnt  lH)re  in  mind,  as  far  as  jxjssible,  the  recommendations  made  In 
the  First  Peace  Conference,  with  special  regard  to  the  rights  and  dutie- 
of  neutrals,  the  private  pr()(>erty  of  iK'Higorents  at  sea,  the  bombard- 
ment of  |X)rts,  cities,  etc.  It  entertains  the  hope  that  the  Governnunt 
of  the  United  States  will  take  the  whole  of  the  points  proixised  as  the 
e.Npre-sion  of  a  wish  to  come  nearer  that  lofty  ideal  of  international 
ju-tice  that  is  the  permanent  goal  of  the  whole  civilized  world. 

I')V  order  of  my  ("lovernment,  I  have  the  honor  to  ac<|uaint  you  witli 
the  foregoing,  and  awaiting  the  reply  of  the  Government  of  the  I'nited 
States  with  as  little  delay  a-  [xissible.  1  embrace  this  opportunity  tn 
beg  you,  Mr.  Secretarv  of  I^tate,  to  accept  the  assurance  of  my  very 
high  consideration. 

RosKv. 


INSTRUCTIONS  TO  THE  AMERICAN  OELfcQATES  TO  THE  HAGUE 
CONFERENCE  OF  1907' 

Df.i-artmfnt  op  Statk, 

VVASlllViilON,  Mny  Jl,   iQoj. 

To  Masrs.  Joseph  //.  Choate.  Horace  Porter,  Uriah  .' '  Rose,  nazHJ 
Jayne  Hill,  Georfie  H.  Dai'is.  Charles  S.  Sperry,  and  William  I. 
Buchanan. 

Ckntlfmk.v:  Voii  have  been  apfMiintcd  dele^Mtes  i>knt[K)tcnliary 
to  represent  the  I'liite.l  States  at  a  Seivnd  F'eace  Conference  which 
is  to  meet  at  The  IIa|,Mie  on  the  15th  of  June,  VW. 

The  need  of  such  a  Conference  was  sujjfresfed  to  the  F'owers  si>;na- 
tory  to  the  acts  of  The  HaRiic  Conference  of  Wf)  by  ['resident 
Rcx)sevclt  in  a  circular  note  by  my  predecessor,  Mr.  I  Fay,  dated 
October  21,  1<X)4.  and  the  project  met  with  a  K^neral  expression  of 
assent  and  sympathy  from  the  Towers:  but  its  reahzation  was  jwst- 
poned  k'cause  of  tie  then  existing  war  between  Japan  and  Russia. 
The  conclusion  of  the  peace  which  ended  that  "war  presenting,'  a 
favorable  moment  for  further  developinp  and  systematizinfj  the 
work  of  the  First  Conference,  the  initiative  was  appropriately  trans- 
ferred to  His  ImiK-rial  Majesty  the  Fni{Kror  of  Russia  as  initiator 
of  the  First  Conference.  The  Russian  Government  profn.sed  that 
the  prnRram  of  the  contemplated  meeting  should  include  the  fol- 
lowing topics : 

1.  Improvements  to  be  made  in  the  provisions  of  the  Cnnvontioii 
relative  to  the  peaceful  settleinmt  of  international  ,;i<putes  as  re- 
gards the  court  of  arbitration  and  th-'  international  commissions 
of  inf|iiin,'. 

2.  Additions  to  be  made  to  the  provisions  of  the  Convention  of 
l.y  relative  to  the  laws  and  customs  of  war  on  land -,-.mon" 
others,  those  concerning  the  opening  of  ho^tiliti^-,  the  rights  Si 
neutrals  on  land,  etc.  Declarations  of  1S'X».  dne  of  tlicse  hav- 
ing expired,  (|uestion  of  its  being  revived. 

'l-'<rngn  Kclations  of  the  United  Stales    1907.  pt    2.  p.   1128:   .Sci.tt.  „h    at 

•  '  ''■     '1.     ]l.      Iff  I  '  ' 


?  ^i 


70  THE  IIAGUK   CONFERENCE  OF   1907 

3.  Framing  of  a  convention  relative  to  the  laws  and  customs  of 
maritime  warfare,  concerning — 

The  special  oi>erations  of  maritime  warfare,  such  as  the  bom- 
bardment of  ports,  cities,  and  villages  by  a  naval  force;  the  lay- 
ing of  torpedoes,  etc. 

The  transformation  of  merchant  vessels  into  war-ships. 

The  private  property  of  belligerents  at  sea. 

The  length  of  time' to  be  granted  to  merchant  ships  for  their 
departure  from  ports  of  neutrals  or  of  the  enemy  after  the  open- 
ing of  hostilities. 

The  rights  and  duties  of  neutrals  at  sea;  among  others,  the 
questions  of  contraband,  the  rules  applicable  to  belligerent  ves- 
sels in  neutral  ports;  destruction,  in  cases  of  vis  major,  of  neutral 
merchant  vessels  captjred  as  prizes. 

In  the  said  convention  to  lie  drafted,  there  would  i)e  intn>- 
duced  the  provision.,  relative  to  war  on  land  that  would  also  Ik- 
applicable  to  maritime  warfare. 

4.  Additions  to  be  made  to  the  Convention  of  1899  for  the  adaj)- 
tation  to  maritime  warfare  of  the  principles  of  the  Geneva  Con- 
vention of   18f)4. 

We  are  advised  by  the  Ambassador  of  Russia,  in  a  note  datid 
March  22/April  4,  190",  that  all  of  the  Powers  have  declared  their 
adlKsion  to  this  tentative  program.  The  following  .emarks,  hoiA- 
ever,  have  been  made  in  respect  thereof : 

The  C.oveniment  of  the  United  States  has  reserved  to  itself  tia- 
lil)erty  of  sulmiitting  to  the  Conference  two  additional  questions,  viz., 
the  reduction  or  limitation  of  armaments  and  the  attainment  of  .in 
agreement  to  ol)serve  some  limitations  upoti  the  use  of  force  for  tlio 
collection  or  ordinary  ])ul)lic  debts  arising  out  of  contracts. 

Tile  Spani.sh  ( iovernnieut  has  exiiresseil  a  desire  to  discuss  the  limi- 
tation of  armaments. 

1  l-e  I'.riti.'^h  ( jovernment  has  given  notice  that  it  attaches  great  iin- 
ptrt.vnce  to  having  the  question  of  exiKUilitures  for  armament  ili- 
cns-td  at  the  Conference,  and  has  reserved  to  itself  the  right  of  rul- 
ing it. 

The  (iovernments  of  Bolivia,  Denmark,  (irecce,  and  the  Netlier- 
l.inds  have  reserved  to  themselves  in  a  general  way.  the  right  In 
submit  to  the  consideration  of  the  Conference  subjects  not  -peciallv 
enumerated  in  the  program. 

.Several  <  Iovernments  have  reserved  the  right  to  take  no  part  in  anv 
discu-sion  wliieh  mav  appe.ir  unlikely  to  produce  any  useful  re-iilt 

The    Russian    note   proposing   the   program   declared   that    the  'Ic 


INSTRUCTIONS  TO  THE   AMERICAN    DELEGATION 


71 


liberations  of  the  contetnplated  meetings  should  not  deal  with  the 
political  relations  of  the  different  States,  or  the  condition  of  tilings 
established  by  treaties ;  and  that  neither  the  solution  of  the  questions 
brought  up  for  discussion,  nor  the  order  of  their  discussion,  nor  the 
form  to  be  given  to  the  decisions  reached,  should  be  determined  in 
advance  of  the  Conference.  We  understand  this  view  to  have  l)een 
accepted. 

In  regard  to  the  two  (|uestions  which  were  not  included  in  the  ])ro- 
posed  program,  but  which  the  United  States  has  reserved  the  right 
to  present  to  the  Conference,  we  understand  that  notice  oi  the  reserva- 
tion has  been  communicated  to  all  the  I'owers  In  note  similar  to 
that  from  the  Russian  Ambassador  dated  March  22/ April  4,  1907 ; 
so  that  each  Power  has  had  full  opportunity  to  instruct  its  delegate> 
in  respect  thereof.  The  United  States  understands  that  as  to  the 
topics  included  in  the  program  the  acceptance  of  the  program 
involves  a  determination  that  such  topics  shall  he  considered  l)y  the 
Conference,  subject  to  the  reserved  rights  of  particular  Powers  to 
refrain  from  discussion  of  any  toi)ic  as  to  which  it  deems  that  dis- 
cussion will  not  he  useful :  hut  that  as  to  the  two  tojjics  which  we 
have  reserved  the  right  to  present,  there  has  been  no  determination 
one  way  or  the  other,  the  question  whether  they  shall  be  considered 
by  the  Conference  remaining  for  the  determination  of  the  Conference 
itself  in  case  they  shall  be  presented. 

It  is  not  expedient  that  ymi  should  he  limited  by  too  rigid  instruc- 
tions ujion  the  various  questions  which  are  to  he  discussed,  for  such 
a  course,  if  pursued  generally  with  all  the  delegates,  would  make  the 
discussion  useless  and  the  Conference  a  mere  formality.  You  will, 
however,  keep  in  mind  the  following  observations  regarding  the  gen- 
eral (wilicy  of  the  United  States  ujion  these  questions: 

1.  In  the  discussions  upon  every  question  it  is  imjiortaiit  to  remem- 
ber that  the  oiiject  of  the  Conference  is  agreement,  and  not  compul- 
sion. If  •such  C'onferetices  are  to  be  made  occisions  for  trving  to 
force  nations  into  jxjsitions  wliiih  they  consider  against  tlieir  interests, 
the  I'owers  can  not  Ik;  expected  to  send  representative--  to  them.  It 
is  imi)<)rtant  also  that  the  agreements  reached  .shall  be  genuine  and 
not  reluctant.  Otherwise  tliey  will  inevitably  fail  to  receive  approval 
when  submitted  for  the  ratification  of  the  Powers  represented.  Com- 
jKirisiiii  of  views  and  frank  and  considirate  explan.ilion  .ind  discus- 
sion may  frequently  resolve  doubts,  obviate  ditVtculties,  and  lead  to 


72 


THE   HAGUE  CONFERENCE  OF   1907 


real  agreement  upon  matters  which  at  the  outset  have  appeared  in- 
surmoimtable.  It  is  not  wise,  however,  to  carry  this  process  to  the 
point  of  irritation.  After  reasonable  discussion,  if  no  agreement  is 
reached,  it  is  better  to  lay  the  subject  aside,  or  refer  it  to  some  future 
Conference  in  the  hope  that  intermediate  consideration  may  dispose 
of  the  objections.  L'pon  some  questions  where  an  agreement  by  only 
a  part  of  the  Powers  represented  would  in  itself  be  useful,  such  an 
agreement  may  be  made,  but  it  should  always  be  with  the  most  un- 
reserved recognition  that  the  other  Powers  withhold  their  concurrence 
with  equal  propriety  and  right. 

The  immediate  results  of  such  a  Conference  must  always  be  limited 
to  a  small  part  of  the  field  which  the  more  sanguine  have  hoped  to  sec 
rovere(l :  but  each  successive  Conference  will  make  the  p<isition> 
reached  in  the  preceding  Conference  its  point  of  departure,  and  will 
bring  to  the  consideration  of  further  advances  toward  international 
agreements  opinions  affectetl  by  the  acceptance  and  application  of  the 
previous  agreements.  F.ach  Conference  will  inevitably  make  furtlur 
progress  and.  by  successive  steps,  results  may  be  accomplished  which 
have  fnnnerlv  apin-ared  imjKissible. 

\'im  should  keep  always  in  mind  the  promotion  of  this  continiun- 
pnices^  through  which  the  progressive  development  f>f  internatiimril 
justice  ail,'  peace  may  be  carried  on:  and  yoii  should  regard  the  work 
of  the  -ctond  Conference,  not  merely  with  reference  to  the  ikliiiiic 
results  to  be  reached  in  that  Conference,  but  also  with  reference  to  ;!h 
fiuuKJation-  which  ni.iv  be  laid  for  further  results  in  future  Confer- 
ences. It  mav  well  be  that  among  the  most  valuable  service-  ren- 
dered to  civiii/alion  bv  this  Second  Conference  will  be  foiuid  llu'  pr.  ,'- 
re-s  made  in  inatters  ui>on  wlii<-h  the  delegates  reach  no  ileiiiMic 
.igreement 

With  thi-  view  you  will  favor  the  adoption  of  a  resolution  li>  tii- 
Conference  providing  for  the  holding:  of  further  Conferences  \\it!;:i 
tised  period-  ,iui\  arranging  the  machinery  by  which  -ucli  Confercncc- 
mav  be  called  and  the  terms  of  the  program  may  be  arranudl. 
without  avvaitini;  any  new  and  -pecitic  initiative  on  the  part  of  ;!'c 
I'irw  cr-  or  an\   (■;k   of  tlicin. 

I'.nconr.-iuieinent  for  -uch  ;i  course  i-  to  be  found  in  the  -ucci--'  ii 
workin'_'  of  a  -innlar  ;irr;ini,H'nient  foi"  niternation.al  ci  nference-  of  i''e 
American  republic-  The  second  American  (onference.  lul!  i: 
Mexico   in    l'K>l-J.   ;ulo|iled   ;i   resolution   proviiling  that   a   llrrd   (■si- 


INSTKUCTIONS    TO    THF,    AMI.kMAN    DF-LKGATION 


71 


1 


ttTcnce  should  meet  within  five  years  and  committed  the  lime  and 
place  and  the  pr<)},'ram  and  necessary  details  to  the  Department  of 
State  and  representatives  of  the  American  States  in  Washington. 
I'nder  this  authority  the  Third  Conference  was  called  and  held  in  Rio 
(le  Janeiro  in  the  summer  of  19CX)  and  accomplished  results  of  sub- 
stantial value.     That  Conference  adopted  the  following  resolution: 


.  I 

I 


I 


M 


The  governing  board  of  the  International  I'.ureau  of  American 
Republics  (conijM)se(l  of  the  same  official  representatives  in  Wash- 
ington) is  autliorized  to  designate  the  place  at  which  the  Fourth 
International  I  onference  >hall  meet,  which  meeting  shall  lie  within 
the  ne.xt  five  years  :  to  jirovide  for  the  drafting  of  the  program 
and  regulations  and  to  take  into  consideration  all  other  neces.sary 
details;  and  to  ^et  another  date  in  case  ;he  meeting  of  the  said 
Conference  can  not  take  place  within  the  prescribed  limit  of  time. 

There  is  no  aijjiarent  reason  to  doubt  that  a  similar  arrangement 
for  successive  general  international  conferences  of  all  the  civilized 
Powers  would  prove  as  practicable  and  as  useful  as  in  the  case  of  the 
twenty-one  American  States. 

2.  The  policy  of  the  Cnited  States  to  avoid  entangling  alliances 
and  to  refrain  from  any  interference  or  participation  in  the  political 
aftairs  of  Europe  must  l)e  kept  in  mind,  and  may  impose  upon  you 
some  degree  of  reserve  in  respect  of  sime  of  the  questions  which  are 
discussed  by  the  Conference. 

In  the  Fir.st  Conference  the  American  delegates  accompanied  their 
vote  uiK)n  the  report  of  the  committee  regarding  the  limitation  of 
armaments  by  the  following  declaration; 

1  hat  the  Cnited  States,  in  so  doini,'.  does  not  express  any  opinion 
as  to  the  course  to  be  taken  by  the  States  of  Europe.  This  dec- 
laration is  not  meant  to  mdicate  mere  indifference  to  a  difficult 
problem,  because  it  does  not  affect  the  I  'nitcd  States  inmiediately, 
but  expresses  a  determination  to  refrain  fn.m  enunciating  o[)inions 
ujum  matters  into  which,  as  concerning  Europe  alone,  the  Cnited 
Slates  has  no  claim  to  enter.  The  words  drawn  up  bv  M.  Hour- 
.!.,'eois.  and  adopted  by  the  first  commission,  received  also  tlie  cor- 
dial interest  and  sympathy  with  which  the  Cnited  States,  while 
carefully  abstaining  from  anything  that  might  resemble  inter- 
ference, regards  all  movements  that  are  thouglit  to  tend  to  tiie 
welfare  of  Europe. 


74 


THE  HAGUE  CONFERENCE  OF   1907 


Before  signing  the  arbitration  cimvention  of  the  First  Conference 
the  delegates  of  the  United  States  put  upon  record  the  following 
declaration : 

Nothing  contained  in  this  (.'onvention  shall  be  so  construed  as 
to  require  the  United  States  of  America  to  depart  from  its  tradi- 
tional policy  of  not  intruding  upon,  interfering  with,  or  entangling 
itself  in  the  political  ([uestions  or  \K)\icy  or  internal  administration 
of  any  foreign  State;  nor  shall  anything  contained  in  the  said 
Convention  be  construed  to  imply  a  re!in(]uishiiient  by  the  United 
States  of  America  of  its  traditional  attitude  toward  purely  Amer- 
ican (juestions. 

These  declarations  have  received  the  approval  of  this  Government, 
and  they  should  be  regarded  by  you  as  illustrating  the  caut  on  which 
you  are  t<>  exercise  in  preventing  our  participation  in  maters  ui 
general  an<l  world-wide  concern  from  drawing  us  into  the  political 
affairs  of  I-^urope. 

3.  The  attitude  of  tlie  United  States  as  to  consideration  of  the  sub- 
ject of  limiting  armaments  was  stated  in  a  letter  from  the  Secretary 
of  State  to  the  Russian  ambassador  dated  June  7.  VXX).  That  letter, 
after  expressing  assent  to  the  enumeiation  of  topics  in  the  Russian 
progratntne,  proceeded  to  say  : 

The  ( Jovernnient  of  the  United  States  is,  however,  so  deci)l\ 
in  sympathy  with  the  noble  and  humanitarian  views  which  nicnoi 
His' Imperial  Majoty  to  the  calling  of  the  First  Peace  Coiif.-- 
ence  that  it  would  greatly  regret  to  see  those  views  excluded  trmn 
tlie  cnnsideration  of  the'Second  Conference.  jQuotmg  from  tin- 
call  for  the  First  Conference.) 

The  truth  and  value  of  the  .sentiments  thus  expressed  are  scnK 
independent  of  the  special  conditions  and  obstacles  to  their  ri.il- 
izatioii  by  vvhicli  they  may  be  confronted  at  any  particular  I  mi. 
It  1-  true'  that  tlie  h'irst  Conference  at  The  Hague  did  not  titid  ii 
practicable  to  give  them  effect,  Init  iong-contimicd  and  |nU:ci:! 
effort  li.is  :.lwavs  lieen  found  necessary  to  bring  mankind  iiil'i 
conformity  with'  great  ideals.  It  woiil.l  be  a  misfortune  if  tliit 
elTort,  so'liaiipih  and  magnanimously  inaugurated  by  His  l!;i]»- 
rial  Majestv,  were  to  be  abandoned. 

This  (iovernmeiit  is  no;  unmindful  of  the  fait  that  the  iienpU- 
of  the  Unite<l  States  dwell  in  cimiparative  security.  ])artly  by  rea- 
son of  their  isolation  .anil  partly  because  they  have  never  become 
involved  in  the  numerous  (juestions  to  which  main  centiirus  t 
close  ncight)orhoo<l  have  given  rise  in  F.uro|x-.      riiev  are,  there 


INSTRUCTIONS   TO  THE   AMERICAN    DELEGATION 


75 


-I 

i 


I 


fore,  free  from  the  apprehensions  of  attack  which  are  to  so  great 
an  extent  the  cause  of  great  armaments,  and  it  would  ill  become 
them  to  be  insistent  or  forward  in  a  matter  so  much  more  vital 
to  the  nations  of  Europe  than  to  them.  Nevertheless,  it  some- 
times happens  that  the  very  absence  of  a  special  interest  in  a  sub- 
ject enables  a  nation  to  make  suggestions  and  urge  considerations 
which  a  more  deeply  interested  nation  might  hesitate  to  present. 
The  Government  of  the  United  States,  therefore,  feels  it  to  be  its 
duty  to  reserve  for  itself  the  liberty  to  propose  to  the  Second  Peace 
Conference,  as  one  of  the  subjects  of  consideration,  the  reduction 
or  limitation  of  armaments,  in  the  hope  that,  if  nothing  further 
can  be  accomplished,  some  slight  advance  may  be  made  toward 
the  realization  of  the  lofty  conception  which  "actuated  the  Em- 
peror of  Russia  in  calling  the  First  Conference. 

The  First  Conference  adopted  the  following  resolutions ; 

Tlie  Conference  is  of  opinion  that  the  restriction  of  militar\- 
charges,  which  are  at  present  a  heavy  burden  on  the  world,  is 
extremely  desirable  for  the  increase  of  the  material  and  moral 
welfare  of  mankind. 

The  Conference  expresses  the  wish  that  the  Governments, 
taking  into  consideration  the  proposals  made  at  the  Conference, 
may  examine  the  possibility  of  an  agreement  as  to  the  limitation 
of  armed  forces  by  land  and  sea  and  of  war  budgets. 

I'nder  these  circumstances  this  (jovernment  has  been  and  still  is 
of  the  opinion  that  this  subject  should  be  regarded  as  unfinished 
l)iisiness,  and  that  the  Second  Conference  should  ascertain  and  give 
full  consideration  to  the  results  of  .such  examination  as  the  (Govern- 
ments may  have  given  to  the  possibility  of  an  agreement  pursuant  to 
the  wish  expressed  by  the  First  Conference.  We  think  that  there 
shduld  be  a  sincere  effort  to  learn  whether,  by  conference  and  dis- 
iu>-i(jn,  some  practicable  formula  may  not  be  worked  out  wliich  would 
ii.ivc  the  etfect  of  limiting  or  retarding  the  increase  of  anuaments. 

I  Iktc  is.  however,  reason  to  In-lieve  not  only  that  there  has  been 
the  CNamination  by  the  respective  ( lovemments  for  which  the  First 
roiifercncf  expre-^e(|  a  wish,  but  that  the  discussion  of  its  results  has 
liccn  forestalled  by  a  prix-ess  of  direct  communication  between  a 
majority  of  the  Goveniments  having  the  greatest  immediate  interest 
in  the  subject.  These  communications  have  been  going  on  activelv 
anioiiij  the  <iitTercnt  Governments  for  nearly  a  year,  and  as  a  result 
at  least  four  of  the  European  Powers  have  announced  their  unwiiling- 


I  ■'•.  - 


76 


THE  HAGUE  CONFERENCE  OF   1907 


ness  to  continue  the  discussion  in  the  Conference.  We  repret  that 
the  discussion  should  have  taken  place  in  this  way  rather  than  at  the 
Conference,  for  we  are  satisfied  that  a  discussion  at  the  Conference 
would  have  afforded  a  prcater  probability  of  projjress  toward  the 
desired  restdt.     Tiie  fact,  however,  can  not  be  ipnored. 

If  any  Kuropcan  I'ower  proposes  consideration  of  the  subject,  you 
will  vote  in  favor  of  consideration  and  do  everything  you  properly 
can  to  promote  it.  If.  on  the  other  hand,  no  European  Power  pro- 
poses consideration  of  the  subject,  and  no  new  and  affirmative  evi- 
dence is  presented  to  satisfy  you  that  a  useful  purpose  would  \k 
su!)servcd  by  your  makinjj  such  a  proposal,  you  may  assume  that  the 
limitations  above  stated  by  way  of  guidance  to  your  action  prechnle 
you  from  asking  the  Conference  to  consider  the  subject. 

4.  The  other  subject  which  the  United  States  specifically  rescrvcil 
the  right  to  propose  for  consideration  is  the  attainment  of  an  agree- 
ment to  observe  some  limitation  upon  the  use  of  force  for  the  collec- 
tion of  ordinary  public  debts  arising  out  of  contract. 

It  has  long  been  the  established  policy  of  the  LTnited  States  not  to 
use  its  army  and  navy  for  the  collection  of  ordinary  contract  dclit- 
due  to  its  citizens  by  other  Governments.     This  Government  has  not 
considered  the  use  of  force  for  such  a  puriKise  consistent  with  that 
respect    for  the    independent    sovereignty   of   other  members   of   the 
family  of  nations  which  is  the  most  import.-int  principle  of  intern.i 
tional  law  and  the  chief  protection  of  weak  nations  against  the  oiv 
pression  of  the  strong.     It  seem-  to  us  that  the  pmrtice  is  injuri 
in  its  general  effect  upon  the  relation  of  nations  and  uixm  the  Aelf.in- 
of  weak  and  disordered  States,  whose  development  ought  to  t>e  en- 
couraged in  the  interests  of  civilization  ;  that  it  offers  fre<|uent  tiini*- 
tation   to  bullying  and   oppression   ;infl   to  unnecessary   and    utiiti-ii- 
fiable  warfare.     It  is  doubtless  tnie  that  the  non-payment  of  -luh 
debts  may  be  accompanied  by  such  circumstance-  of  fraud  and  wnn- 
doing  or  violation  of  treaties  as  to  justify  the  use  of  force     hut  uc 
should  be  glad  to  see  an  international   consideration  of  tins   Miliut 
which  would  discriminate  l)etvveen   snch   cases   and   the   simple  non 
performance  of  a  contract   with  a  private  f)erson,  and   a   resolution 
in  favor  of  reliance  upon  j)eaceful  means  m  cases  of  the  Litter  cl:i  ■ 

The  Third  International  Conference  of  the  .American  State-.  !  ■'  ' 
at    Rio  (le  Janeiro   in   Augii-t.    l'X)C>,    resolved: 


INSTRUCTIONS  TO   THE   AMERICAN    DELEGATION 


77 


To  recommend  to  the  ("lovcrnments  therein  that  they  consider 
the  point  of  inviting  the  Second  I'eace  Conference  at  The  Hague 
to  examine  the  question  of  the  compulsory  collection  of  public 
debts,  and,  in  general,  means  tending  to  diminish  between  na- 
tions conflicts  having  a  peculiarly  pecuniary  origin. 

You  will  ask  for  the  consideration  of  this  subject  by  the  Confer- 
ence. It  is  not  probable  that  in  the  first  instance  all  the  nations  repre- 
sented at  the  Conference  will  be  willing  to  go  as  far  in  the  establish- 
ment of  limitations  upon  the  use  of  force  in  the  collection  of  this  class 
of  debts  as  the  United  States  would  like  to  have  them  go,  and  there 
may  be  serious  objection  to  the  consideration  of  the  subject  as  a  sepa- 
rate and  independent  topic.  If  you  find  such  objections  insunnount- 
able,  you  will  urge  the  adoption  of  provisions  under  the  head  of 
arbitratiuri  looking  to  the  establishment  of  such  limitations.  The 
adoption  of  some  such  provisions  as  the  following  may  be  suggested, 
and,  if  no  better  solution  seems  practicable,  should  be  urgdl: 

Tlie  u.se  of  force  for  the  collection  of  a  contract  debt  alleged 
to  be  due  by  the  ("lovernment  of  any  country  to  a  citizen  of  anv 
other  country  is  not  [x-nnissible  until  after — 

1.  The  justice  and  amount  of  the  debt  shall  have  been  deter- 
mined by  arbitration,  if  demanded  by  the  alleged  debtor. 

2.  'i'lie  lime  and  manner  of  payment,  and  the  security,  if  any. 
to  be  given  pending  payment,  shall  have  been  fixed  by  arb-tra- 
tion,  if  demanded  liy  tile  alleged  debtor 

,-.  !n  the  general  field  of  :irhitration  two  lines  of  advance  are 
clearly  indicated.  The  first  is  to  provide  for  obligat<iry  arbitration 
a^  liro.ii!  in  -iO|it'  as  now  appear^,  to  he  practicable,  and  the  second  is 
ti)  increase  the  riTectiveness  of  the  system  so  that  nations  may  more 
rc.ulily  have  recourse  to  it  voluntarily. 

^'MU  are  familiar  with  the  numerous  expressions  in  favor  of  the 
-eitkniem  of  international  disputes  by  arbitr.ntion  on  the  part  both 
m  t!ie  Coiisjnss  ,mii  of  the  Executive  of  the  I 'nited  States. 

."■.  niaiiy  -eparate  treaties  of  arbitration  have  In^en  made  between 
inilni.hial  conntrus  that  there  i>  little  cause  to  douI)t  that  the  time 
I-  iiM'.\  npe  for  a  decided  advance  in  this  direction.  This  condition. 
wliicl'  liriny;^  the  >uhiect  of  a  general  treaty  for  obligatory  arbitra- 
ti'ii  \\\U\  the  field  of  [)ractical  discussion,  is  undoubtedly  lar!;ely  due 
to  ill'  fact  that  the  Powers  geiieraliv  in  the  I-'irst  Hague  Conference 
committed   themselves   to  the   jiniiciple   of   the   jiacific    settlement   of 


% 


78 


THE   HAGUE  CONFERENCE  OF   1907 


international  questions  in  the  admirable  convention  for  voluntarv 
arbitration  then  adopted. 

The  Rio  Conference  of  last  summer  provided  for  the  arbitration  of 
all  pecuniary  claims  among  the  American  States.  This  convention 
has  been  ratified  by  the  President,  with  the  advice  and  con>ent  of 
tlie  Senate. 

In  Decenil)er.  1901,  and  January,  1905,  my  predeccs>or.  Mr.  Hay. 
concluded  separate  arbitration  treaties  between  the  United  States  and 
CJreat  Britain.  France,  CJermany,  Spain,  Portugal,  Italy,  Switzerland. 
Austria-Hungary,  Sweden  and  Norway,  and  Mexico.  On  the  11th 
of  February,  1905,  the  Senate  advised  and  consented  to  the  rati- 
fication of  these  treaties,  with  an  amendment  which  has  had  the  cflfert 
of  preventing  the  exchange  of  ratifications.  Tlie  amendment,  how- 
ever, did  not  relate  to  the  scope  or  character  of  the  arbitration  to 
which  the  President  had  agreed  and  the  Senate  consented.  You  wil! 
be  justified,  therefore,  in  assuming  that  a  general  treaty  of  arbitr:i- 
tion  in  the  terms,  or  substantially  in  the  terms,  of  the  series  of  trcatic- 
which  I  have  mentioned  will  meet  the  approval  of  the  ("lovernmint 
of  the  United  States.  The  first  article  of  each  of  these  treaties  w.is 
as  follows : 

DiflFerences  which  may  arise  of  a  legal  nature,  or  relating  to 
the  interpretation  of  treaties  existing  between  the  two  contract- 
ing parties,  and  which  it  may  not  have  been  possible  to  settle  by 
(iipkimacy.  shall  be  referred  to  the  permanent  court  of  arbitra- 
tion established  at  The  H.Tgne  by  the  Convention  of  the  ^'ih 
Iiilv.  180*^*.  provided,  nevertheless,  that  they  do  not  affect  the  vital 
iiitercsf^.  the  indejjendeiice.  or  the  honor  r>f  the  two  contract iiii^' 
States,  and  do  not  concern  the  interests  of  third  parties. 

To  this  extent  you  may  go  in  agreeing  to  a  general  treaty  of  ,irli:- 
tr.ition,  and  to  secure  such  a  treaty  yon  should  use  your  l>est  anil 
must  earnest  efforts. 

^utli  ;i  general  treaty  of  arbitration  necessarily  leaves  to  be  deier- 
nnncd  in  each  particular  case  what  the  questions  at  issue  between  tlie 
two  ("lovemnients  are.  and  whether  those  questions  come  within  ihe 
scope  if  the  tre.ity  or  within  the  exceptions,  and  what  shall  be  tin- 
scnjx'  if  the  Towers  of  the  arbitrators.  The  Senate  amendment  whu!; 
l)r(\ente<l  the  ratifiiMlion  (if  e.ich  of  these  treatie-  applied  ontv  to 
aiHilh<T   .irtiile  of   tli(    treaty    which   provided    for   •special   agrcenuin- 


INSTRUCTIONS  TO  THE   AMERICAN    DELEGATION 


79 


in  regard  to  these  matters  and  involved  only  the  question  who  should 
act  for  the  United  States  in  making  such  special  agreements.  To 
avoid  having  the  same  (,ucstion  arise  regarding  any  general  treaty 
of  arbitration  whicii  you  may  sign  at  The  Hague,  your  signature 
should  be  accompanied  by  an  explanation  substantially  as  follows: 

In  signing  the  general  arbitration  treaty  the  delegates  of  the 
United  States  desire  to  have  it  understood  that  the  special  agree- 
ments provided  for  in  article  —  of  said  treaty  will  be  subject  to 
submission  to  the  Senate  of  the  United  States. 

The  methnd  in  which  arbitration  can  l>e  made  more  efTcctive,  so 
that  nations  may  be  more  ready  to  have  recourse  to  it  voluntarily  and 
tn  enter  into  treaties  by  which  they  bind  themselves  to  submit  to  it, 
is  indicated  by  ohservition  of  the  weakness  of  the  system  now  ap- 
parent.    There  can  be  no  doubt  that  the  principal  objection  to  arbi- 
tration rests  not  ufxtn  the  unwillingness  of  nations  to  submit  their 
Cdntrovcrsies  to  impartial  arbitration,  but  upon  an  apprehension  that 
the  arbitrations  to  whicli  they  submit  may  not  be  impartial.     It  has 
been  a  very  general  practice  for  arbitrators  to  act,  not  as  judges  decid- 
ing (|uestions  of  fact  and  law  upon  the  record  before  them  under  a 
sense  of  judicial  responsibility,  but  as  negotiators  efTecting  settlements 
of  the  questions  brought  before  them  in  accordance  with  the  tradi- 
tions ,niul  usages  and  subject  to  all  the  considerations  and  influences 
which  affect  diplomatic  agents.     The  two  methods  are  radically  dif- 
ferent, proceed  upon  different  standards  of  honorable  obligation,  and 
fre(iuently  lead  to  widely  differing  results.     It  very   frecniently  hap- 
pens th.-it  a  nation  which  would  be  very  willing  to  submit  its  differences 
to  an  impartial  judicial  determination  is  unwilling  to  subject  them  to 
this  kind  of  diplomatic  process.     If  there  could  be  a  tribunal  which 
would  pass  upon  ipiestions  between  nations  with  the  same  impartial 
and   impersonal    judgment    that    the    Supreme   Court    of    the    United 
States   give-   to   questions   arising   between   citizens   of   the   different 
States,  or  between    foreign  citizens  and   the  citizens  of  the   United 
States,  there  can  Ik-  no  doubt  that  nations  wwiuld  be  much  more  ready 
tn  -nlnuit  tlieir  controversies  tn  it-  decision  than  they  ;ire  now  to  take 
the  chances  of  arbitration.     It   sbould  le  your  effort  to  bring  .about 
in   the    Second    Conference   a    development    of   the    Ilagtie    tribunal 
into  a  permanent  tribiuial  composed  of  judges  who  are  judicial  offi- 
cers :in'I  nothing  else,  who  are  paid  adequate  s.alaries,  who  have  no 


1 1. 


80 


THE   IIAGUK  CONPKRENCF.  OF   1907 


Other  occupation,  and  who  will  devote  their  entire  time  to  the  trial  and 
decision  of  international  causes  by  judicial  methods  and  un<ler  a  scnNe 
of  judicial  responsibility.  These  judges  should  be  so  selected  from 
the  different  countries  that  the  different  systems  of  law  and  procedure 
and  the  principal  laiiKuanes  shall  be  fairly  rejjrescnted.  I'he  court 
>In)uld  l)e  made  of  such  dij^ity,  consideration,  and  rank  that  the  best 
and  ablest  jurist*  will  accept  appointment  to  it.  and  that  the  wlmlo 
world  will  have  absolute  confidence  in  its  jndfnneiits. 

The  arbitration  convention  sintied  at  the  I'irst  Hajjue  Conference 
contained  no  authority  for  the  adherence  of  non-signatory  Powers, 
but  provided: 

The  conditions  on  which  the  Powers  who  were  tint  ri|)re>eiilcil 
at  the  IiUernational  Peace  Conference  can  adhere  to  the  present 
Convention  shall  form  the  subject  cf  a  separate  agreement  among 
the  contracting  Powers. 

This  left  all  the  Central  and  South  .American  States  outside  of  tin- 
treats.  The  L'nited  States  has  from  time  to  time  en(lcav()re<l  tn 
secure  an  opportunity  for  them  to  adhere,  and  it  has  now  In't'ii 
arrange  1  that  this  shall  Ih!  accomplished  as  a  necess.iry  prclimin.ir\ 
to  their  taking  part  in  the  Second  Conference.  The  method  arranged 
is  that  on  the  day  before  the  opening  of  the  Conference  a  protm  ! 
shall  be  signed  by  the  representative*  of  all  the  PoAers  signal' m 
to  the  treaty  substantially  as  follows: 

The  representative-  at  the  Second  Peace  I'onference  of  tlir 
State*  signatories  of  the  convention  of  IH')*)  relative  to  the  \n':\ci- 
ttd  settletiient  of  international  disputes,  duly  authorized  to  tli  i' 
etleet,  have  agreed  that  in  case  the  States  that  were  not  npn 
sented  at  the  I'irst  Peace  Conference,  but  have  been  convoked  \'> 
the  present  Conference,  should  notify  the  Ciovernment  of  i!  c 
Xetherlanijs  of  their  ailhesion  to  the  alxve-mentioned  convent mn 
ttu'v  shall  he  fortliuith  considered  as  having  acceded  thereto. 

It  is  tinderstoDil  that  substantially  all  the  Central  and  Smith  .\incri 
can  States  have  notitied  the  <  inveninient  of  the  .Netherlands  of  thru 
adherence  to  the  Convention,  and  uiK)n  the  signing  of  this  protoi  nl 
their  notice*  will  iiunieciiatety  fake  effect  and  they  will  become  parln  - 
com|H;teiit  to  take  part  in  the  discussions  of  the  Secon<l  Conferetuo 
looking  toward  the  amendment  and  extension  of  the  arbitration  c-m- 


M 


INSTRUCTIONS   TO  THE   AMERICAN    OELEGATION 


81 


vcntion.  Yon  will  sJKn  the  protocol  in  hdialf  of  tlie  Initcd  States 
pursuant  to  the  full  ix>wer<i  already  ({ivcn  you. 

t).  You   will   maintain   tlic  tiailitiotial   (wlicy  of  the   I'nited  State> 

regarding  the  ininiunity  of  private  property  of  l)elli(,'crent»  at  sea. 

On  the  2!Sth  of  April,  1904,  the  ( on^ress  of  the  United  States 
adopted  the  following  resolution : 

Risohnl  by  tin-  Si-mit,'  and  House  of  Representathes  of  the 
United  Stitles  of  .Imernit  in  Coni;ress  assembled,  lliat  it  is  the 
sense  of  the  Coni;ress  of  the  I'nited  States  that  it  is  desirable,  in 
the  interests  of  nniformit>  of  action  hy  the  maritime  States  of 
the  world  in  time  of  war,  that  the  I'resi.lent  endeavor  to  hrin^ 
alKUit  an  umlerstandinj;  atnoof,'  the  principal  maritime  Powers 
with  a  view  of  incurporatioK  into  the  |)ermanent  law  of  civilized 
nations,  the  principle  of  the  e.xeniption  of  all  private  property  at 
sea,  not  contraband  of  war,  from  ca))ture  or  destruction  by  bel- 
liijerents.     .Approved  .\pril  28.  1904. 

This  resolution  is  an  expression  of  the  view  taken  by  the  I'nited 
St.ites  durinp  its  entire  history.  Such  a  provision  was  incorporated 
in  the  treaty  of  177.S  with  Prussia,  sijjned  by  Henjamin  I-'ranklin, 
Thomas  Jefferson,  and  John  .\danis,  an. I  It  was  proposed  by  the 
I'nited  States  as  an  amendment  to  be  added  to  the  privateering  clause 
of  the  Declaration  of  Paris  in  I8.S6.  The  refusal  of  the  other  Powers 
to  accompany  prohibition  of  privateerinj;  by  such  a  provision  caused 
the  (H)vcrnment  of  the  United  States  to  refuse  its  adherence  to  the 
declaration. 

The  (."onprcssional  resolution  was  in  response  to  the  recommenda- 
tion of  President  Roosevelt's  niessasje  to  ("onj,'ress  in  DecemlK-r,  190,^ 
quoting,'  and  enforcing  ;<  previous  messaije  bv  President  McKinlev  in 
IXceniIxT,  1898,  which  said: 

The  United  States  (Miverimunt  bas  for  many  years  advocated 
this  humane  and  beneficent  i)rinciplc.  and  is  now  in  a  position  to 
recommend  it  to  other  I'mvers  without  the  impntati'M  of  seltish 
motive-'. 


I   I 


Whatever  may  Ix-  the  apparent  specific  interest  of  this  or  any  other 
coi.ntry  at  the  moment,  the  principle  thus  declared  is  of  such  perma- 
lunt  and  universal  importance  that  no  lialancinj,'  of  the  chances  of 
proh.able  loss  or  ^jain  in  tlie  innnediate  future  on  the  part  of  anv 
nation  should  Ix-  ix-rmitted  to  outweigh   the  considerations   of  com- 


W  X<y7>r*»to3fSi»RT 


W,!n.B 


W!«1»«IB 


MICKOCOfY   RESOIUTION   TEST   CHART 

lANSI  and  ISO  TEST  CHART  No    21 


If  ill        1^ 

•^  1^     12.2 


36 

40 


2.0 


1.6 


A     /IPPLIED  INA^GE 


■■61    .8;-      CUCC      i-no-e 
'16)    .'88      6989  •  ^ !• 


■-6U-J  'Jt 


82 


THE  HAGUE  CONFEREiNCE  OF   1907 


mon  benefit   to  civilization  which  call   for  the  adoption  of   such  an 

agreement. 

In  the  First  Peace  Conference  the  subject  of  the  immunity  of  pri- 
vate propertv  at  sea  was  not  included  in  the  program.  Considera- 
tion of  it  was  urged  by  the  delegates  of  the  '"nited  States  and  v.as 
supported  by  an  able  presentation  on  the  part  of  Mr.  Andrew  D. 
White.  The  representatives  of  several  of  the  great  Powers  declared, 
however,  that  in  the  absence  of  instructions  from  their  Governments 
thev  could  not  vote  upon  the  subject :  and.  under  the  circumstances, 
we'must  consider  that  gratifying  progre-s  was  made  when  there  was 
included  in  the  Final  Act  of  the  Conference  a  resolution  expressing— 

The  wish  that  the  proposal  which  contemplates  the  declaration 
of  the  inviolabilitv  of  private  property  in  naval  warfare  may  be 
referred  to  a  subsequent  Conference  for  consideration. 

The  subject  has  accordingly  been  included  in  the  present  pro- 
gram and  the  way  is  open  for  its  consideration. 

"^  It  will  be  appropriate  for  you  to  advocate  the  proposition  formu- 
lated and  presented  by  the  American  delegates  to  the  First  Confer- 
ence, as  follows: 

The  private  propertv  of  all  citizens  or  subjects  of  the  signa- 
tory Powers,  with  the  exception  of  contraband  of  war,  shall  be 
exempt  from  capture  or  seizure  on  the  high  seas,  or  elsewhere 
bv  the  armed  vessels  or  bv  the  military  forces  of  any  of  the  saul 
signatorv  Powers.  But  nothing  herein  contained  shall  extend 
exemption  from  seizure  to  vessels  and  their  cargoes  which  niav 
attempt  to  enter  a  ix)rt  blockaderl  by  the  naval  forces  of  anv  m 
the  said  Powers. 

7  Since  the  code  of  ruies  for  the  government  of  military  operations 
on  Ian,'  was  adopted  by  the  First  Peace  Conference  there  have  been 
occasii.„>  for  its  application  under  very  severe  conditions,  not.ihly  m 
the  South  African  war  and  the  war  between  Japan  and  Ru>-i:.. 
Doubtless  the  Powers  involved  in  tho^e  cniflicts  have  had  occasion  tn 
ob^rrve  manv  particulars  in  which  useful  .idditions  or  improvements 
nii'dit  be  made.  You  will  consider  their  suggestions  with  a  view  to 
red'ucing,  ^o  far  as  is  practicable,  the  evils  of  war  and  protecting  the 

rights  of  neutral'^. 
"as  to  the  framing  of  a  convention  relative  to  the  customs  of  man- 


INSTKLCTIONS  TO  THE   AMERICAN    DELEGATION 


83 


time  warfare,  you  are  referred  to  the  naval  war  code  promulgated  in 
C.eneral  Orders  551  of  the  Navy  Department  of  June  27,  1900,  which 
has  met  with  {general  commendation  by  naval  authorities  throughout 
the  civilized  world,  and  which,  in  general,  expresses  the  views  of  the 
United  States,  subject  to  a  few  specific  amendments  suggested  in  the 
volume  of  international  law  discussions  of  the  Naval  War  College  of 
the  year  1003,  pages  91  to  9".  The  order  putting  this  code  into  force 
was  revoked  by  the  Navy  Department  in  1904,  not  because  of  any 
change  of  views  as  to  the  rules  which  it  contained,  but  because  many 
of  those  rules,  being  imposed  upon  the  forces  of  the  United  States  by 
the  order,  would  have  put  our  naval  forces  at  a  disadvantage  as 
against  the  forces  of  other  Powers,  upon  whom  the  rules  were  not 
binding.  The  whole  discussion  of  these  rules  contained  in  the  vol- 
ume to  which  I  have  referred  is  commended  to  your  careful  study. 

You  will  urge  upon  the  Peace  Conference  the  formulation  of  inter- 
national rules  for  war  at  sea  and  will  offer  the  Naval  War  Code  of 
1900,  with  the  suggested  changes  and  such  further  changes  as  may  be 
made  necessary  by  other  agreements  reached  at  the  Conference,  as  a 
tentative  formulation  of  the  rules  which  should  be  considered. 

8.  The  clause  of  the  program  relating  to  the  rights  and  duties 
of  neutrals  is  of  very  great  importance  and  in  itself  would  furnish 
matter  for  useful  discussion  sufficient  to  occupy  the  time  and  justify 
the  lalxirs  of  the  Conference. 

The  various  subjects  which  the  Conference  may  be  called  upon  to 
consider  are  likely  to  bring  out  proposals  which  should  be  considered 
in  their  relation  to  each  other,  as  standing  in  the  following  order  of 
siilistaiinnl  importance: 

(It    Irovisions  tending  to  prevent  disagreements  between  nations. 

(2)   Provisions  tending  to  dispose  of  disagreements  without  war. 

(3 1   Previsions    tending    to    preserve    the    rights    and    interests    of 

neutral^. 

'4)   Provisions  tending  to  mitigate  the  evils  of  war  to  belligerents. 

The  relative  importance  of  these  classes  of  provisions  sho-ild  always 
1r'  kept  in  mind.  Xo  rules  shotdd  be  adopted  for  the  jnirpose  of 
mitigating  the  evils  of  war  to  belligerents  which  will  tend  strongly  to 
(le^trov  the  right  of  neutrals,  and  no  rules  should  be  adopted  regard- 
ing the  rights  of  neutr.iU  which  will  tend  strongly  to  bring  about 
war.  It  is  of  the  highest  imjwrtance  that  not  only  the  rights  but  the 
liiities  of  neutrals   shall   be   most   clearly   and   distinctly   defined   and 


htj;  r 

M 


84 


THE  HAGUE  CONFERENCE  OF   1907 


understood,  not  only  because  the  evils  which  belligerent  nations  bring 
upon  themselves  ought  not  to  be  allowed  to  spread  to  their  peaceful 
neighbors  and  inflict  unnecessary  injury  upon  tlie  rest  of  mankind, 
but  because  misunderstandings  regarding  the  rights  and  duties  of 
neutrals  constantly  tend  to  involve  them  in  controversy  with  one  or 
the  other  belligerent. 

For  both  of  these  reasons,  s])ecial  consideration  should  be  given  to 
an  agreement  upon  what  shall  be  deemed  to  constitute  contraband 
of  war.  There  has  been  a  recent  tendency  to  extend  widely  the  list 
of  articles  to  be  treated  as  contraband ;  and  it  is  probable  that  if  the 
belligerents  themselves  are  to  determine  at  the  beginning  of  a  war 
what  shall  be  contraband,  this  tendency  will  continue  until  the  list 
of  contraband  is  marie  to  include  a  large  proportion  of  all  the  articles 
which  are  the  subject  of  commerce,  upon  the  ground  that  they  will  be 
useful  to  the  enemy.  When  this  result  is  reached,  especially  if  the 
doctrine  of  continuous  voyages  is  applied  at  the  same  time,  the  doctrine 
that  free  ships  make  free  goods  and  the  doctrine  that  blockades  in 
order  to  be  binding  must  be  effective,  as  well  as  any  rule  giving  im- 
munity to  the  property  of  oelligerents  at  sea,  will  be  ileprived  of  a 
large  part  of  their  effect,  and  we  shall  find  ourselves  going  backward 
instead  of  forward  in  the  effort  to  prevent  every  war  from  be- 
coming universally  disastrous.  The  exception  of  contraband  of  war 
in  the  Declaration  of  Paris  will  be  so  expanded  as  to  very  largely 
destrov  the  effect  of  the  declaration.  On  the  other  hand,  resistance 
to  this  tendency  toward  the  expansion  of  the  list  of  contraband  ought 
not  to  be  left  to  the  neutrals  affected  by  it  at  the  very  moment  when 
war  exists,  because  that  is  the  process  by  which  neutrals  become  them- 
selves involved  in  war.  You  should  do  all  in  your  power  to  brinj,' 
about  an  agreement  u{X)n  what  is  to  constitute  contraband ;  and  it  is 
very  desirable  that  the  I'st  should  be  limited  as  narrowly  as  possible 

With  the.se  instructions  there  will  be  furnished  to  you  copies  of  the 
di|)lomatic  correspondence  relating  to  the  conference,  the  instructions 
to  the  delegates  to  the  First  Conference  which  are  in  all  respect^ 
reaffirmed  and  their  report,  the  international  law  discussions  of  tiif 
Xaval  War  College  >f  I'X)^.  the  report  of  the  American  delegates  to  tin.' 
Conference  of  the  American  Republics  at  Rio  de  Janeiro  in  I'XXJ,  an! 
the  report  of  the  .American  delegates  to  the  Geneva  Conference  i)f 
lyOT)  for  the  revision  of  the  Red  Cross  Convention  of  1864. 

Following  the  precedent  established  by  the  commission  to  the  First 


INSTRLCTIONS  TO  THE   AMERICAN    DELEGATION 


85 


Conference,  all  your  reports  and  communications  to  i.iis  Government 
will  be  made  to  the  Department  of  State  for  proper  consideration  and 
eventual  preservation  in  the  archives.  The  record  of  your  commis- 
sion will  be  kept  by  your  secretary,  Mr.  Chandler  Hale.  Should  you 
be  in  doubt  at  any  time  regarding  the  meaning  or  effect  of  these 
instructions,  or  sliould  yon  consider  at  any  time  that  there  is  occa- 
sion for  special  instructions,  you  will  communicate  freely  with  the 
Department  of  State  by  telegraph.  It  is  the  President's  earnest 
wish  that  you  may  contribute  materially  to  the  effective  work  of  the 
Conference  and  that  its  deliberations  may  result  in  making  inter- 
national justice  more  certain  and  international  peace  more  secure. 
I  am,  gentlemen,  your  obedient  servant, 

Elihu  Root. 


I 

■i 


REPORT  TO  THE  SECRETARY  OF  STATE  OF  THE  DELEGATES  OF 
THE  UNITED  STATES  TO  THE  SECOND  HAGUE  CONFERENCE' 

Hon.  Elihu  Root, 

Secretary  of  State. 
Sir:  Pursuant  to  a  reiiue-t  of  the  Interparliamentary  Union,  hdil 
at  St.  Louis  in  UKM.  that  a  future  peace  conference  be  held  and  that 
the  President  of  the  United  States  invite  all  nations  to  send  repre- 
sentatives to  such  a  conference,  the  late  Secretary  of  State,  at  the 
direction  of  the  President,  instructed,  on  October  21,  1904,  the  repre- 
sentatives of  the  United  States  accredited  to  each  of  the  signatories 
to  the  acts  of  the  the  Hague  Conference  of  1899  to  present  overtures 
for  a  second  conference  to  the  ministers  for  foreign  affairs  of  the 
respective  countries. 

The  replies  received  to  this  circular  ii  truction  of  October  21,  11(U. 
indicated  that  the  proposition  for  the  calling  of  a  second  conference 
met  with  general  favor.  At  a  later  period  it  was  intimated  by  Russia 
that  the  initiator  of  the  First  Conference  was,  owing  to  the  restora- 
tion of  peace  in  the  Orient,  disposed  to  undertake  the  calling  of  a 
new  conference  to  continue  as  well  as  to  supplement  the  work  o. 
the  first.  The  offer  of  the  Czar  to  take  steps  requisite  to  convene  a 
second  international  peace  conference  was  gladly  welcomed  by  tho 
President,  and  the  Final  Act  of  the  Conference  only  recites  m  it^ 
preamble  the  invitation  of  the  President. 

The  Russian  Government  thus  assumed  the  calling  of  the  Cmt.r- 
ence  and  on  April  12,  1906.  submitted  the  following  program,  which 
was  acceptable  to  the  Powers  generally  and  which  served  as  the  ba^i^ 
of  the  work  of  the  Conference: 

1  Improvements  to  be  made  in  the  provisions  of  the  Conven- 
tion relative  to  the  peaceful  settlement  of  intematu.na  d.^pntes 
as  regards  the  court  of  arbitration  and  the  international  commis- 
sions of  inquiry. 

"T^rnv"   h',latv,„s  of  the  CnU.d  States.  1907.  pt.  2,  ,..   1144;   Sett.  .p.  .  ..• , 

vi)l.  ii,  p.  198. 


KEPORT    OF    THE    AMERICAN    DELEGATION 


87 


I 


I 


2.  Additions  to  be  made  to  the  provisions  of  the  Convention  of 
1899  relative  to  the  laws  and  customs  of  war  on  land — among 
others,  those  concerning  the  opening  of  hostilities,  the  rights  of 
neutrals  on  land,  etc.  Declarations  of  1899.  One  of  these  having 
expired,  ([uestion  of  its  being  revived. 

3.  Framing  of  a  convention  relative  to  the  laws  and  cnstonis  of 
maritime  warfare,  concerning — 

The  special  operations  of  maritime  warfare,  such  as  the  bom- 
bardment of  ports,  cities,  and  villages  by  a  naval  force;  the  lay- 
ing of  torpedoes,  etc. 

The  transformation  of  merchant  ve-    Is  into  war-ships. 

The  private  property  of  belligerents  at  sea. 

The  length  of  time  to  be  granted  to  merchant  ships  for  their 
departure  from  ports  of  neutrals  or  of  the  enemy  after  the  oix-n- 
ing  of  hostilities. 

The  rights  and  duties  of  neutrals  at  sea,  among  others  the 
questions  of  contraband,  the  rules  applicable  to  belligerent  ves- 
sels in  neutral  ports ;  destruction,  in  cases  of  ris  major,  of  neutral 
merchant  vessels  captured  as  prizes. 

In  the  said  convention  to  be  drafted  there  woukl  be  introduced 
the  provisions  relative  to  war  on  land  that  would  be  also  appli- 
cable to  maritime  warfare. 

4.  .Additions  to  be  made  to  the  Convention  of  1899  for  the 
adaptation  to  maritime  warfare  of  the  principles  of  the  Geneva 
Convention  of  1864. 

The  I'nitcd  States,  however,  reserved  the  right  to  bring  to  dis- 
cussion two  matters  of  great  importance  not  included  in  the  pro- 
gram, namely,  the  reduction  or  limitation  of  armaments  and  re- 
strictions or  limitations  upon  the  use  of  force  for  the  collection  of 
ordina.y  public  debts  arising  out  of  contracts. 

It  was  finally  decided  that  the  Conference  should  meet  at  The 
Hague  on  the  15th  day  of  June.  1907,  and  thus  the  Conference,  pro- 
posed by  the  President  of  the  United  States,  and  convoked  by  Her 
.Majf-ty  the  Queen  of  the  Xetherlanrls  upon  the  invitation  of  the 
Emperor  of  All  the  Russias,  assumed  definite  shape  and  form. 

It  will  be  recalled  that  the  First  Peace  Conference,  although  inter- 
national, was  not  universal,  for  only  a  fraction  of  the  Powers  recog- 
nizins;  and  applying  international  law  in  their  mutual  relations  w*t" 
invited  to  The  Hague.  The  fact  that  the  uninvited  might  adhere 
to  the  conventions  was  foreseen  by  the  Conference  itself,  and  the  con- 
ventions concerning  the  laws  and  customs  of  land  warfare  and  the 
a  laptation  to  maritime  warfare  of  the  principles  of  the  Geneva  Con- 


88 


THE   IIAdlE  CDNFF.KENCE  OF    1907 


vciition  of  till-  22(1  of  Aiipii'-t,  \H(A,  provided  that  non  >iK'i:itor\ 
Powers  by  adhtrin;,'  became  admitted  to  the  privileges  as  well  a- 
bound  by  the  liabilities  of  the  variotis  conventions.  The  Convention 
for  the  peaceful  adjustment  of  international  difficulties  (Art.  60)  su^:- 
Sested  eventual  adherence  of  such  countries,  but  made  this  conditiomd 
upon   an   under  standing  to  be   reacheil   by   the  contracting    Powers. 

In  the  circulars  cf  October  21  and  Occemlier  16.  I'XM,  it  was  siit,'- 
yested  as  (le^iral)le  to  consider  and  adopt  a  procedure  by  which  Statis 
non-signatory  to  the  original  acts  of  the  Hague  Conference  may  U- 
come  adhering  parties.  This  suggestion  was  taken  note  of  by  tiie 
Russian  Covcrnment  and  invitations  were  issued  to  forty-seven  cmiii- 
trics.  in  response  to  which  the  representatives  of  forty- four  natiim- 
assembled  at  The  Hague  and  took  part  in  the  Conference.  No  ojipo- 
sition  was  made  to  the  admission  of  the  non-signatory  States  to  tlic 
benefits  of  the  Convention  of  1899  for  the  peaceful  adjustment  of 
international  difficulties,  and  on  the  14th  day  of  June,  VX)7.  the 
signatories  of  the  First  Conference  formally  consented  under  ttuir 
hands  and  seals  to  the  adhesion  of  the  non-signatory  States  invited  to 
the  Second  Conference. 

The  delegation  of  the  I'nited  States  to  the  Conference  was  compoHMl 
of  the  following  members: 

Commissioners  plenipotentiary  with  the  rank  of  ambassador  ex- 
traordinary: Joseph  H.  Choate,  of  New  York;  Horace  Porter,  of  New 
York ;  Uriah  M.  Rose,  of  Arkansas. 

Commissioner  plenipotentiary:  David  Jayne  Hill,  of  New  York, 
envoy  extraordinary  and  minister  plenipotentiary  of  the  United  States 
to  the  Netherlands, 

Commissioners  plenipotentiary  with  rank  of  minister  plenipotenti,ir>-: 
Brig.  Gen.  George  B.  Davis,  Judge-.^dvocate-General.  U.  S.  Army; 
Rear-Admiral  Charles  S.  Sperry.  U.  S.  Navy;  William  I.  Huclianaii. 
of  New  York. 

Technical  delegate  and  expert  in  international  law:  James  Bnun 
Scott,  of  California. 

Technical  delegate  and  expert  attache  to  the  commission:  Charles 
Henry  Butler,  of  New  York. 

Secretary  to  the  commission  :  Chandler  Hale,  of  Maine. 

.\ssistant  secretaries  to  the  commission;  A.  Bailly-Blanchard.  of 
Louisiana  ;  William  M.  Malloy,  of  Illinois. 

The   Dutch  Government   set  aside   for  the  use  of  the  confcniKC 


REPOKT    OF    TIIK    AMF.RrCAN    DELEGATION 


89 


-I 
I 


i 

1 


the  liinnenliof,  the  scat  of  the  States-(ieneral,  and  on  the  15th  day 
of  June,  1907,  at  3  o'clock  in  the  afternoon,  the  Conference  was 
opened  by  his  Excellency  the  Dutch  Minister  for  Foreign  Affairs  in  the 
presence  of  delegates  representing  forty-four  nations.  In  the  course 
of  his  remarks  his  Excellency  offered  "a  tribute  of  gratitude  to  the 
eminent  statesman  who  controls  the  destinies  of  the  United  States 
of  America.  President  Roosevelt  has  greatly  contributed  to  harvest 
the  grain  sown  by  the  august  initiator  of  the  solemn  international 
Conferences  assembled  to  discuss  and  to  render  more  exact  the  rules 
of  international  law  which,  as  the  States  are  the  first  to  recognize, 
should  control  their  relations." 

At  the  conclusion  of  the  address  of  welcome  his  Excellency  sug- 
gested as  president  of  the  Conference  his  Excellency  M.  .Ntlidovv, 
first  delegate  of  Russia,  and,  with  the  unanimous  consent  of  tlie  assem- 
bly, M.  Nelidow  accepted  the  presidency  and  delivered  an  address, 
partly  personal,  in  which,  in  addition  to  thanking  the  conference  for 
the  honor  of  the  presidency,  he  called  attention  to  the  work  of  the 
First  Conference  and  outlined  in  a  general  way  the  underlying  purpose 
of  the  Second  Conference  and  the  hopes  of  the  delegates  assembled. 
.-\t  the  termination  of  his  address  he  proposed  the  personnel  of  the 
secretary-general's   office. 

.-\t  the  next  meeting  of  the  Conference,  on  the  19th  day  of  Jime. 
the  president  proposed  that  the  Conference  follow  the  procedure  of 
the  First  Conference,  adapting  it,  however,  to  the  new  conditions ; 
for.  as  the  Conference  was  so  large,  it  seemed  advisable  to  draw  up 
a  series  of  rules  and  regulations  to  facilitate  the  conduct  of  business. 
The  presi.'cnt  thereupon  proposed  the  following  twelve  articles,  which 
were  unanimously  adopted,  with  the  exception  of  the  third  paragraph 
of  Article  8,  which  was  suppressed : 

Akticle  1.  Tlie  Second  Peace  Conference  is  composed  of  all 
the  plenipotentiaries  and  technical  delegates  of  the  Powers  which 
Im-e  signed  or  adhered  to  the  conventions  and  acts  signed  at  the 
First  Peace  Conference  of  1899. 

.Apt.  2.  .After  organizing  its  bureau,  the  Conference  shall  ap- 
point commissions  to  study  the  (luestioiis  comprised  within  its  pro- 
gram. 

The  plenipotentiaries  of  the  Powers  are  free  to  register  on  the 
lists  of  these  commissions  according  to  their  own  convenience 
and  to  appoint  technical  delegates  to  take  part  therein. 

.Art.  3.  The  Conference  shall  appoint  the  president  and  vice- 


90 


Till.    HAi;i  K  roNKKHr.NCK  OF 


1W7 


presidents  of  each  commission.     Tiie  commissions  shall  apiKjiiu 
their   secretaries  and  thiir   reporter. 

Akt.  4.  liach  commission  shall  have  the  i)Ower  to  divide  UmIi 
into  subcomniissions,  winch  shall  organize  their  own  bureau. 

Akt.  5.  An  editing  committee  for  the  purpose  c<f  coordinatmi; 
the  acts  adopted  hy  the  Conference  and  preparing  them  m  tiicn 
tinal  form  shall  also  he  appointed  hy  the  Conference  at  the  begin- 
ning of  its  labors. 

Akt.  0.  Ihe  niemher>  of  the  delegations  are  all  authorized  m 
take  part  in  tlie  deliberations  at  the  pienary  sessions  of  the  (  on- 
ferencc  as  well  as  in  the  commissions  of  which  they  form  part 
The  members  of  one  and  the  same  delegation  may  mutually 
replace  one  anotlicr. 

Art.  /.  The  members  of  the  Conference  attending  the  nuetiiiv;- 
of  the  commissions  of  which  they  are  not  members  shall  not  W- 
entitled  to  take  part  in  the  deliberations  without  being  specially 
audiorizcd  for  this  purpose  by  the  presidents  of  the  commission- 

Art,  J<.  When  a  vote  is  taken  each  delegation  shall  have  n\\\\ 

one  vote.  ,     •     ,        , 

The  vote  shall  he  taken  by  roll-call,  in  the  alphabetical  or.l.  r 
of  the  Towers  represented. 

[The  delegation  of  one  I'ower  may  have  itself  repre-eiitcil  1>\ 
the  delegation  of  another  Power.] 

Akt.  9.  Kvery  proposed  resolution  or  desire  to  be  di-cu^cl 
by  the  Conference  must,  as  a  general  rule,  be  delivered  in  writ- 
ing to  the  president,  and  be  printed  and  distributed  before  b.i' „' 
taken  up  for  discussion. 

Art  10.  The  public  may  be  admitted  to  the  plenary  -c-.inp. 
of  the  Conference.  Tickets  will  be  distributed  for  this  purp^-. 
by  the  secretary  general  with  the  authorization  of  the  presidett' 

The  bureau  may  at  any  time  decide  that  certain  se-sioiis  ^\\dV 

not  be  public.  .  ,    ,     ,^      r 

.Art.  11.  The  minutes  of  the  plenary  sessions  of  the  Conlcrc'i.e 
and  of  the  commissions  shall  give  a  succinct  resume  of  the  delib- 
erations. ,       ,  ,.  , 

(if  them   shall  be  opportunely   delivered  to  t'.' 
Conference  and   they   shall   not  be  rend  ,\t  t!u- 
sions. 
.^„.v   shall   have  a   right   to   re(|ucst   the   insertion   :•' 
full   of   his  official   declarations   according   to   the   text    doliv.ro.l 
by  him  to  the  secretary,  and  to  make  observations  rcganhiii;  t!^' 

niituitc-.  .     .  1    11  I 

The  report-  of  the  comnii-^sions  and   subcommissions  siuH  i^ 

printed  and  distributed  before  being  taken  up  for  discussinii 
.■\kt.  12    The  French  l.inguago  is  recognized  as  the  official  h-i- 

guage  of  the  deliberations  and  of  the  acts  of  the  Conference 


.\   proof  copy 
members  of  the 

beginning  i>f  the 
I'.ach   delegate 


REPORT    OF    TIIF.    AMI'.RICAN     nKI.K(.A Tli  IN 


91 


I 


The  secretary  j;cneral  ^llall,  with  the  consfiit  of  the  s|Makir 
liiniself,  see  that  -.jieeches  delucrcil  in  any  other  lanKiiaj;e  are 
summarized  orally  in  French. 

The  president  stated  that  tlie  projjrani  for  the  work  of  the  I'on- 
fercnce  was  so  elaborate  tliat  a  division  of  the  C'cMiferenre  into  four 
ccminissions  would  In;  advisable;  that  in  so  doinji  the  precedent  of 
ISW  would  be  followed,  for  the  I'irst  (onference  ap[Kjrtioned  the 
subjects  enumerated  in  the  pro>;ram  amnnjj  tiiiee  cotiunission^. 
The  following  disjKjsitions  were  tlieren|)oii  j)ri)|xjsed  ami  at,'ree(l  to: 

KlRSl    ti;M  MISSION 

Arbitration. 

International  commissions  of  iiu|uiry  and  question^  connected 
therewith. 

SECOND  COMMISSION 

Improvement.-!  in  the  system  of  the  law^  and  customs  of  land 
warfare. 
<  )pcning  of  liostilities. 
Declarations  of  1,H'.)<)  relating  thereto. 
Rights  and  obligatio      of  neutrals  on  land. 

i  IIIRD    COMMISSION 

Bombardment  of  ports,  cities,  and   villages  by  a   naval   force. 

Laying  of  torpedoes,  etc. 

The  rules  to  which  the  vessels  of  belligerents  in  neutral  ports 
would  be  subjected. 

.Additions  to  be  made  to  the  Convention  of  IS'W  in  order  to 
adaiJt  to  maritime  warfare  the  princmli  of  the  Cicneva  (Tonven- 
tion  of  18^)4,  revised  in  VXM,. 


FOURTH    COMMISSI 

Transformation  of  nuTcliaiU  \e--st'!s  into  \s 

Private  property  at  sea. 

Delay  alloweil    for   tlie  dep.irtiire  of   rnm 

in  enemy  ports. 

('ontraband  of  war.     Hlockaili 
Di'stniction  of  neutral  prizes  bv  fon-i-  nt,: 
rrn\i-.ioiis  regarding  laml  warfare  whicli   v 

c.iblc  to  naval  warfare. 

llie  pre-ident  thereupiin  proposed  as  president-  i 
various  conimiitees  the  following  delegates: 


lant 


le  appli- 
of  the 


92 


rilK,   IIAtil  K  ulNI-f.HI' N(  K  OK    l'H)7 


First  conmii-'iDii :   M    Inm   Itourgiois. 

Sccoiul  coniiiiis-U)n;  M.  Uctriuurt ;  ;issiMaiit  pri-Mdcnt,  M.   1".  M    < 
AssiT. 

riiinl  lomnii-Mi'ti :  '  ouiit    luriiu'lli. 

I'oiirtli  iiiiiimi--'-inii ;  M.  dc  Martfiis. 

At  tlic  >anic  time  tin-  priMiUnl  .lcsij;iiatcil  as  lion..raiy  iiroM<lv m- 
of  tlif  lliird  and  mcoiuI  cuiiiiiii-si.iiis  M^■s^r•..  }n>v]>h  11.  C  lio.iii-  an! 
lIoracL-  I'ortcr.  and  a>  a  nuiiiluT  of  ihc  corrcspondeiue  committ''. 
llun.  I'riali  M.  ko>f.  Tlu-  pioidciit  nvoiniiiciidcd  lli.il  tiic  .l.lil»r.i 
lion*  be  kept  secret,  or,  at  least,  that  tlicy  l)e  imt  c.-inniimicattd  I  ^ 
members  to  the  press,  llie  reconiiiieiulatmn  v\as  iiiianim(>u>ly  ad-i>U''.. 
but  was  nnt  iiniver.'^ally  adhered  tn  by  the  dele^-itev 

The  first,  second,  and  third  commissions  were  -ubseiineiitly  divnk 
into  suhcummisMons  in  order  to  rechue  the  numbers  and  to  facilinu 
the  work,  and  at  various  times  coinmittees  of  examination  uiu 
appointecl  by  eacli  .-f  the  commi.'sioiis  in  order  still  further  to  rediia 
nieinlier-hii)  and  to  pre-mt  in  acceptable  form  projects  accepted  ni 
principle  but  iiol  m  det.id  by  the  various  cmmi-sioiiv  Fiiiall\,  n 
order  to  correct  the  latiRuaKe  and  to  assi^m  the  various  pr.,;^H'- 
already  approved  to  their  proper  place  in  the  Final  Act.  a  lar^e  eiit- 
ing  committee  [comitc  dr  liiLntion)  was  appointed  at  a  mcetini;  ii 
the  Conference  and  a  subcommittee  was  appointed.  consistiiiL;  >>: 
eight  tncmbers,  to  do  the  work  of  the  larj^c  committee  and  rei-rt 
to  it.  It  may  l>e  said  that  the  American  delegation  was  reprcMii!'.  ' 
on  alm()^t  all  of  llie-e  various  committees  :md  subcommittees. 

The  actual  work  of  the  C  onference  was.  therefore,  done  in  c-nin- 
sion  and  committee.  The  result^,  so  far  as  the  several  comnii-i.  •- 
desired,  were  rejiorted  to  the  Conference  sittinj;  in  plenary  sc-m-m  i-r 
approval,  and.  after  .-.pproval.  submitted  to  the  small  miIh.I'!;:;- 
committee  for  final  revi-iou.  which,  however,  affected  form,  lu.t  -"' - 
stance.  The  results  thus  r^Mched  were  included  in  the  Final  .\ci  a:  j 
sis;ned  by  the  pknipnientiaries  on  the  ISth  <lay  of  OctolKr,  1"'  " 
upon  which  date  the  Conference  adjourned. 

The  positive  results  of  the  Conference  mi,i,dit  be  -et  forth,  v.'.r, 
perhaps  e(|ual  pn>,.riety,  in  either  one  of  two  ways:  First,  bv  1-- 
cii'^siiiiT  the  work  of  each  commission  and  the  results  arcompli-lie.!  1>\ 
e.Hch.  or.  scmndlv,  by  .'numeratin?  and  oe'^cribinR  the  result-  in  tin 
order  ir,  which  they  appear,  arrantjed  bv  the  Confercnc"  itself  n  il  • 
Final   Act.     The  first  method  would  have  the  advanta.u'c  of  v!i,..m-. 


RF.POHT    iiF    TIIK    AMKHIiAN    I>H.H,^rluN 


9.? 


tlic  wrk  of  caih  ii)mriii-.si()ii  as  a  a  hole  from  iiu-  ])rc>i-ntati()ii  ui  the 
various  |)r()jf<tN  until  they  took  final  »\y,i,ic  in  thf  (()iimn--.ion  anrl 
wi're  approved  by  llie  Conference  in  plenary  -vession  As,  however, 
iiii]Hirtaiil  i)rojcits  were  i-oiisulered  liy  the  comr*iis^i(in,  hut  were  not 
voted  u|K)n  hy  the  ("onferenee,  or,  if  voted  in  a  f'>rtn  ^o  nindificd  as 
to  appear  almost  in  the  nature  of  original  propositions,  and  iiiasimich 
as  the  variou^  eoiuentions  and  nieaNures  adopted  arc  arranged  in  the 
Final  Act  without  specific  reference  nl  the  commissions,  it  renu 
advisahle  to  follow  the  onler  of  the  Final  Act,  so  that  e.ich  measure 
may  occu|)y  the  place  in  the  report  which  was  as^iijned  to  it  hy  the 
conference  itself.  This  arrangement  will  hritiu  into  |)rominence  the 
result  rather  than  the  means  hy  which  the  result  was  reached,  and 
will  prevent  in  no  slijjht  measure  repetition  and  du])lic.itioii. 

Following  then  the  order  of  the  Final  Act,  the  various  convention-, 
dcclar.iticins,  resolutions,  and  recommendations  are  prefaced  hy  an 
apt  [lar.vraiih  scttin>j  forth  the  spirit  which  animated  the  conference: 

Fn  a  sorie-.  of  reunion>.  held  from  June  13  to  ( )ctoher  IK,  VX)7. 
in  which  the  delegates  aforesaid  ha\e  been  constantly  animated 
hv  the  desire  to  realize  in  the  l.irjiest  measure  jiossible  the  generous 
views  of  the  august  initiator  nf  the  Conference  and  the  inten- 
tions of  their  ( iovernmenfs,  the  conference  adojjted,  to  he  -uh- 
niitted  to  the  -ignatures  of  the  plenipotentiaries,  the  text  of  the 
conventions  and  of  the  declaration  lureinafter  enumerated  and 
annexed  to  the  present  act. 

The  final  act  then  enumerates  fourteen  subjects,  thirteen  of  which 
are  cmver'ions  and  one  is  a  declaration.     Of  each  of  these  in  turn. 


1  — rnwi  NTioN   toR   riir   pF-.xri  Fii.  .\nji'STMi:\T  of  international 

niFir.RKNCF.S 

This  convention  is,  l)oth  in  conception  ami  execution,  the  wurk  of 
the  Fir-t  Peace  Conference,  of  IS"/),  hut  the  eight  years  which  have 
elap-ed  since  i*s  adoption  suggested  many  improvements  and  modi- 
fications and  not  a  few  addition^.  The  extent  of  the  changes  will 
l)e  evident  from  the  mere  siattinent  that  while  the  convention  of 
18'/'  contained  sixty-one  articles,  the  revision  of  1007  contains  ninety- 
>cvcn  articles.  But  these  figures  throw  no  light  upon  the  nature 
and  inii>ortance  of  the  changes.  The  structure  of  18''9,  however, 
practically    remains    intact,    the    chief    addition    being    the    prov'-ii)n 


94 


THE   HA<;UE   CONFERENCE  OF   1907 


for  summary  procedure  proposed  by  the  French  delegation  ami 
accepted  by  the  conference.  (Title  IV,  Chapter  IV,  arts.  86-90.) 
All  imiwrtant  changes  whicli  tended  either  to  enlarge  the  scope  of 
the  convention  or  to  facilitate  its  application,  thereby  rendering  it 
more  useful,  will  be  discussed  in  detail  in  the  order  of  the  convention. 
Articles  1  to  8  of  Title  II  of  the  revised  convention  deal  with 
good  offices  and  mediation,  and  in  this  title  there  is  only  one  change 
of  importance,  namely,  the  insertion  of  the  word  "desirable"  an 
Article  3,  so  that  the  extension  of  good  offices  by  powers  str.mgir^ 
to  the  conflict  is  considered  not  merely  useful,  as  in  the  convention 
of  189"',  but  desirable,  as  revised  by  the  conference  of  1907.  The 
change  is  perhaps  slight,  hut  the  powers  might  well  consider  a  thing 
useful  and  yet  consider  it  undesirable.  It  may  well  be  that  the  wcml 
"desirable"  is  a  step  toward  moral  duty  and  that  in  time  it  may 
give  rise  to  legal  obligation.  The  same  may  be  said  of  the  insertion 
of  the  word  "desirable"  in  Article  9,  making  the  recourse  to  the  inter- 
national commission  of  inquiry  desirable  as  well  as  useful.  I'.oth 
additions  were  proposed  by  the  American  delegation  and  accepted 
animously  by  the  conference.  In  this  connection  it  may  be  advis- 
able to  note  that  a  like  change  has  been  made  upon  the  prjix)sal 
of  Austria-Hungary  in  the  revision  of  Article  16  of  the  origin.il 
convention,  so  that  the  arbitration  of  judicial  questions  and  questions 
of  interpretation  and  application  of  international  conventions  is 
declared  to  be  not  only  efficacious  and  equitable  but  desirable.     (.\rt. 

38.) 

Title  III  in  both  the  original  and  revised  conventions  deals  with 
international  commissions  of  inquiry;  but  while  the  convention  of 
189!)  contained  but  six  articles  (''-14,  inclusive),  the  revision  contains 
twenty-eight.  .A  little  reflection  shows  the  reason  for  the  great  care 
and  consideration  bestowed  uikiu  the  commission  of  in(|uiry  by  the 
recent  conference.  In  18W  an  institution  was  created  which  was 
hoped  would  be  serviceable.  In  1907  the  creation  was  revised  and 
amplified  in  the  light  of  practical  experience,  for  the  institnlion. 
theoretically  commendable,  had  justified  its  existence  at  a  very  cr.lira! 
moment,  namely,  by  the  peaceful  settlement  of  the  Dogger  Hank 
incident  (1004),  The  provisions  of  1890  were  meager  and  in-utViiiciit 
to  meet  the  needs  of  a  practical  inquiry.  In  '''V  the  procohire 
actually  adopted  by  the  commission  of  inquiry  was  presented  to  the 
conference,   studied,   considered,   and   made  the   basis   of  the  present 


Ri:I'ORT    OF    THE    AMERICAN    DELEGATION 


95 


I 


■a 


'i 


rules  and  regulations.  The  nature  of  the  commission  of  inquiry  is, 
however,  unchanged.  It  was  and  is  an  international  commission 
charged  with  the  duty  of  ascertaining  the  facts  in  an  international 
dispute,  and  its  duty  is  performed  when  the  facts  in  controversy  are 
found.  It  docs  nt)t  render  a  judgment,  nor  does  it  apply  to  the  facts 
found  a  princii)Ic  of  law,  for  it  is  not  a  court.     (Art.  35.) 

The  seat  of  the  commission  is  The  Hague,  but  the  parties  may  pro- 
vide in  the  agreement  of  sulimission  that  the  commission  meet  else- 
where (Art.  11),  or  the  commission  may,  after  its  formation  and 
(luring  its  session  at  The  Hague,  transport  itself,  with  the  consent  of 
the  parties,  to  such  place  or  places  as  may  seem  appropriate  to 
ascertain  the  facts  in  controversy.  The  parties  litigant  not  only  bind 
themselves  to  furnish  to  the  commission  of  inquiry,  in  the  largest 
measure  possible,  the  means  and  facilities  necessary  for  the  estalv 
lishment  of  the  facts,  but  the  contracting  Powers  agree  to  furnish 
information  in  accordance  with  their  municipal  legislation  unless 
such  information  would  injure  their  sovereignty  or  security. 

As  previously  said,  the  First  Conference  created  the  commission  of 
inquiry,  but  left  it  to  the  parties  to  the  controversy  to  fi.x  the  pro- 
cedure, specifying  only  that  upon  the  inquiry  both  sides  be  heard. 
If  the  procedure  were  not  established  in  advance  by  the  litigating 
Towers,  it  was  then  to  be  devised  by  the  commission.  (Art.  10.) 
The  disadvantages  of  this  provision  are  apparent.  The  parties,  in- 
flamed by  passion  or  ill  at  ease,  were,  upon  the  spur  of  the  moment, 
to  devise  an  elaborate  code  of  procedure,  a  task  which  might  well  be 
as  difficult  as  to  ascertain  the  facts  in  dispute.  In  the  ne.xt  place,  if 
thev  did  not  do  so,  the  commission  was  to  fix  the  procedure.  That 
this  task  might  well  be  entrusted  to  the  commission  is  proved  by  the 
fact  that  the  commission  of  1904  did  in  fact  devise  a  s.Trtisfactory 
code.  Hut  tlie  procedure  thus  framed  could  not  be  known  to  the 
litigating  countries  in  advance,  and  the  agents  and  counsel  were 
thus  de|)rived  of  the  opportunity  of  familiarizing  themselves  with  it 
before  entering  upon  the  case. 

Tilt  revision  of  1907,  therefore,  aims  to  obviate  this  difficulty  by 
establishing  a  careful  code  of  procedure  based  upon  the  experience 
of  the  commission  of  l'*(M.  It  is  practical  in  its  nature,  for  it  is 
based  upon  actual  practice.  It  provides  in  atlvance  the  procedure 
of  the  commission,  thus  relieving  the  parties  from  this  serious  task 
and  leaving  the  commission   free  to  begin  its  labors  without  the  ne- 


96 


THE  HAC.l'F,  CONFERENCE  OF   1907 


cessity  of  drawing  up  an  elaborate  system  of  rules  and  regulations 
for  the  conduct  of  business  before  it.  The  procedure,  however,  is 
not  obligatory,  for  the  parties  may,  if  liiey  choose,  specify  in  the  sul)- 
mission  the  procedure  to  be  followed  (Art.  10),  but  the  Conference 
recommended  a  code  of  procedure  which  was  to  be  a])plied  if  the 
parties  did  not  adopt  other  rules  (Art.  17).  The  revision  of  the  title 
devoted  to  international  commissions  of  inquiry  received  the  unani- 
mous approval  of  the  Conference. 

Tlie  selection  of  commissioners  is,  and  must  always  he,  a  matter 
of  delicacy  and  difficulty.  Facts  as  seen  by  one  person  differ  from 
those  as  seen  by  another,  and  national  interest  tends  unconsciously 
to  warp  the  judgment  of  one  whose  country  is  involved  in  the  con- 
troversy. But  the  value  of  the  findings  of  fact  depends  upon  their 
accuracv.  If  possible,  they  should  be  found  by  a  tribvuial  fmni 
which  nationals  are  excluded.  The  world  does  not  seem  to  be  ready 
for  this  ideal  solution,  but  the  conference  made  a  serious  stej)  toward 
it  by  associating  strangers  to  the  controversy  with  the  commission- 
ers. Article  12  of  the  revised  Convention  for  the  peaceful  adjust- 
ment of  international  differences  provides  that  the  commissioners  nt 
inquiry,  in  the  absence  of  a  special  agreement  to  the  contrary.  -lall 
be  chosen  in  accordance  with  .\rticles  45  and  57  of  the  revised  Cmi- 
vention.     These  articles  read  as  follows : 


Art.  45.  When  the  contracting  Powers  desire  to  have  recmir-o 
to  the  Permanent  Court  for  the  settlement  of  a  difference  that  Ins 
arisen  between  them,  the  arbitrators  called  upon  to  form  tiie  com- 
petent tribunal  to  decide  this  ditTercnce  must  be  chosen  fmin  tin' 
general  list  of  members  of  the  Court. 

Failing  the  agreement  of  the  parties  on  the  composition  of  t!io 
arbitration  tribunal,  the  following  course  shall  be  pursued: 

I'.ach  i>rrty  apyxiints  two  arbitrators,  of  whom  only  one  sliall  hf 
its   i-itizen   or   subject,   or   chosen    from   among  those    who   iiavr 
been  designated  by  it  as  metubers  of  the  Permanent  Court.    Tlu- 
arbitrators  together  choose  an  umpire. 

If  the  votes  are  equal,  the  choice  of  the  umpire  is  cntnisti  1  • 
a  third   Power,   selected  by  the  parties  by  common  ,ic-cor<l. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  p-irtx 
selects  a  different  P<nver,  and  the  choice  of  the  umpire  is  m:'.\c 
in  concert  by  the   Powers  thus  selectecl. 

If  these  two  Powers  have  been  imable  to  agrt^e  within  a  j)i'ri  i 
of  two  months,  each  of  them  presents  two  candidates  taken  fr.nt 
the  list  of  the  members  of  the  Permanent  Court,  mitsule  it  ti'' 


REPORT    OF    THK    AMERICAN     DF.LF.r.ATION 


97 


members  dtsij^natcd  l)y  the  parties  and  not  bfinj^  tlie  citizens  or 
subjects  of  citlier  of  them.  It  shall  be  dettrmim-d  by  lot  which  of 
the  candidates  thus  presented  shall  be  the  umpire. 

Art.  57.    The  imipire  is  by  rijjht  president  of  the  tribunal. 

When  the  tribunal  does  not  include  an  um])ire,  it  aiJjKiints  its 
own  president. 


A  consideration  of  Article  4.T  discloses  that  at  least  one  of  the 
commissioners  or  arbitrators  shall  be  a  stranper  to  the  controver.sy. 
.'Article  32  of  the  convention  of  IS'/)  left  lioth  commissioners  or  arbi- 
trators to  the  free  choice  of  the  selecting  Power.  In  the  next  jilace, 
it  will  be  noted  that  the  revised  convention  endeavors  to  secure  the 
comjjosition  of  the  commission  or  court  by  providing  ample  machinery 
for  the  selection  of  the  umpire.  In  the  convention  of  18W,  in  case 
of  an  equality  of  votes,  the  selection  of  the  umpire  was  confided  to  a 
third  Power  designated  by  the  common  accord  of  the  parties  to  the 
controversy.  If,  however,  the  parties  failed  to  agree  u]xm  the  third 
Power  in  question,  each  litigant  chose  a  neutral  Power,  and  these 
neutral  Powers  selected  the  umpire.  It  might  well  ha[)pen,  how- 
ever that  the  agents  would  be  as  far  from  agreement  as  the  princi- 
lia!-.  The  revision  therefore  provided  that  in  case  of  disagreement 
each  litigant  Power  should  select  two  members  from  the  list  of  the 
Permanent  Court,  who  should  neither  be  citizens  nor  owe  their  ap- 
pointment to  a  designating  Power;  that  thereupon  the  umi)ire  should 
be  cho-en  by  lot  from  the  members  of  the  court  so  designated 

It  will  therefore  be  seen  that  the  commission  or  court  will  consist 
of  a  body  of  five,  at  '.east  two  of  whose  members  nnist  be  strangers 
to  the  controversy.  The  umpire  selected  by  their  common  accord 
niav  lie  indifferent.  If  the  commissioners  or  arbitrators  fail  to  agree 
and  make  use  of  the  machiner>  provided,  it  follows  that  the  umpire 
si'lcrted  is  a  stransjer  to  the  controversy,  and  of  the  commission  or 
I'-nirt  consisting  of  five  competent  persrms  a  majority,  that  is  to  say, 
three,  wotdd  be  persons  having  no  national  interest  or  bias  in  the 
cnitroversy.  It  would  seem,  therefore,  that  the  revised  convention 
offer-  a  g-.iaranty  for  the  finding  of  the  facts  as  impartiallv  as  can 
be  tlic  case  when  national  n^presentatives  are  memliers  of  a  small 
conimis-^ii.n  or  court.  As  these  provisions  apply  to  the  selection  of 
arhittT-;  fnr  the  constitution  of  the  court  at  The  Ilagne.  it  is  not 
n  \is-,iry  to  refer  to  them  again  in  detail. 

.\rticle  48  of  the  revision  of  the  convention  of  1800  reals  ,i~  follows : 


i  '■ 


i 


98  THE   HAOUF.  CONFERENCE  OF   1907 

The  signatory  Powers  consider  it  their  duty,  if  a  serious  dispute 
threatens  to  break  out  between  two  or  more  of  thetn.  to  remnul 
these  latter  that  the  remianent  Court  is  open  to  them. 

Consequently,  tbev  declare  that  the  fact  of  remmdmg  the  con- 
flicting paities  of  the  provisions  of  the  present  Convention  and 
the  advice  given  to  them,  in  the  highest  interests  of  peace  to  have 
recourse  to  the  Permanent  Court,  can  only  be  regarded  as  friemlly 
actions. 

To  these  two  paragraphs  was  added  the  following  provision: 

In  case  of  a  controversy  between  two  Powers,  one  of  them  m;i\ 
always  address  to  the  International  Bureau  a  note  contammg  its 
declaration  that  it  is  willing  to  submit  tiie  difference  to  arbitration. 

The  Bureau  shall  immediately  make  the  declaration  known  ti. 
the  other   Power. 

The  American  delegation  of  18W  made  the  following  reserve 
regarding  this  article,  and  the  American  delegation  of  1907  repeated 
the  reserve  in  the  exact  language  of  1899: 

\othing  contained  in  this  Convention  shall  be  so  construe(l  a-  m 
rec|uire  the  i:nited  States  of  .America  to  depart  from  its  traditional 
policy  of  not  entering  upon,  interfering  with,  or  entangling  itseli 
in  the  political  f|ue-tions  or  internal  administration  of  any  foreii.ni 
State,  nor  shall  anvthing  contained  in  the  said  Convention  be  hi 
construed  as  to  require  the  relintiuishment,  by  the  United  Statt"- 
of  .'Vmerica,  of  its  traditional  attitude  toward  purely  .Xniencan 
questions. 

The  changes  regarding  the  Permanent  Court  of  Arbitration,  a-  in 
the  case  of  the  commission  of  inquiry,  relate  chiefly  to  procedure.  !ii 
this,  as  in  the  previous  case,  the  amendments  urre  the  result  of 
experience  gained  in  the  actual  trial  of  cases. 

In  the  first  place.  Article  52.  a  revision  of  Article  .M,  provide-  tliat 
the  agreement  to  arbitrate  (the  comproniis)  shall  specify  in  iktail 
the  period  for  the  appointment  of  the  arbitrators,  the  form.  onkr. 
and  periods  within  which  the  various  documents  necessary  to  the 
arbitration  shall  be  communicated  Art.  6?,).  the  amount  of  muw, 
which  each  partv  shall  deposit  in  advance  to  cover  expenses.  In  :i(i 
dition.  the  agreement  to  arbitrate  shall  ako.  if  there  is  occa-.<m. 
determine  the  manner  of  appointment  of  the  arbitrators,  all  -I'e.iil 
powers  which  the  tribunal  may  have,  its  seat,  the  language  which  n 


REPORT    OF    THE    AMERICAN    DELEGATION 


99 


will  use  and  those  whose  use  will  be  authorized  before  it,  and,  in 
general,  all  the  conditions  which  the  parties  have  agreed  upon. 

it  is  often  difficult  to  formulate  the  question  to  be  submitted  to  the 
Court,  and  it  may  well  be  that  the  parties  litigant,  although  willing  to 
arbitrate,  may  not  agree  i\\xm  the  form  of  submission.  In  order, 
therefore,  to  aid  the  parties,  not  to  coerce  them,  the  revised  conven- 
ticm  provides  a  method  by  which  the  Permanent  Court  is  competent 
to  draw  up  the  agreement  to  arbitrate  if  the  parties  agree  to  leave  it 
to  this  Court.  It  may  happen  that  one  party  is  willing  and  the  other 
is  not.  The  convention  therefore  provided  that  in  such  a  case  the 
court  might,  u|)on  the  re(|uest  of  one  of  the  parties,  formulate  the 
compromis.     The  exact  language  of  the  article  follows : 


After  an  agreement  through  diplomatic  channels  has  been  at- 
tempted in  vain  it  is  likewise  competent,  even  if  the  request  is 
made  by  only  one  of  the  parties  in  case — 

(1)  Of  a  difference  comprised  within  a  general  arbitration 
treaty  concluded  or  renewed  after  this  convention  goes  into  force, 
providing  an  agreement  to  arbitrate  for  each  difference,  and 
neither  explicitly  nor  implicitly  barring  the  competency  of  the 
Court  to  draw  up  such  agreement  to  arbitrate.  However,  recourse 
to  the  Court  shall  not  be  had  if  the  other  party  declares  that  the 
difference  does  not  in  its  opinion  belong  to  the  category  of  differ- 
ences to  be  submitted  to  compulsory  arbitration — unless  the  arbi- 
tration treaty  confers  upon  the  arbitral  tribunal  the  power  to 
decide  this  preliminary  question. 

(2)  Of  a  difference  arising  from  contractual  debts  claimed  by 
one  Power  of  another  Power  as  being  due  to  its  citizens  or  sul>- 
jects,  and  for  the  solution  of  which  the  offer  of  arbitration  has 
been  accepted.  This  provision  is  not  applicable  if  the  acceptance 
has  been  made  contingent  on  the  condition  that  the  agreement  to 
arbitrate  shall  be  drawn  up  in  another  manner. 

If  the  other  party  consents,  and  the  moral  pressure  will  be  great, 
t!ie  special  agreement  may  be  reached  in  this  manner:  but  as  the 
Court  is  not  permanently  in  session  and  would  have  to  be  constituted 
for  the  express  purpose  of  formulating  the  agreement,  ii  follows  that 
the  agreement  must  in  reality  be  the  result  f  the  consent  of  both 
parties,  because  the  Court  can  only  be  constituted  by  the  joint  act  and 
cooperation  of  both  parties  litigant.  It  is  supposed,  however,  that  the 
presence  of  such  a  possibility  may  lead  disputants  to  re.nch  a  con- 
clusion, even  although  they  do  not  care  to  avail  themselves  of  the 
machinery  provided. 


100 


THE  HAGUE  CONFERENCE  OF   1907 


It  should  be  noted  that  the  second  section  of  Article  53  refers  U> 
the  arbitration  of  diflferences  arising  from  contractual  debts.  As  the 
agreement  to  renounce  the  use  of  force  depends  upon  arbitration,  and 
as  arbitration  is  impossible  without  the  nre  minary  agreement  of 
submission,  it  may  happen  that  a  failure  to  agree  would  destroy,  in 
large  measure,  the  value  of  the  convention.  It  is  hoped  that  the  pro- 
visions of  this  article  will  enable  the  agreement  to  be  formulated  in 
extreme  cases  and  thus  exclude  even  the  suggestion  of  force. 

The  other  changes  made  in  the  procedure  are  important,  but  are 
not  of  a  nature  to  cause  discussion  or  comment,  because  they  facili- 
tate but  do  not  otherwise  modify  the  proceedings  before  the  Court 

Chapter  IV  of  the  revised  convention  deals  with  summary  arbi- 
tration proceedings.  Experience  shows  that  it  is  difficult  to  con- 
stitute the  Permanent  Court,  and  that  a  trial  before  it  is  lengthy  a- 
well  as  costly.  The  Conference,  therefore,  adopted  the  proposal  of 
the  t^rench  delegation  to  institute  a  court  of  summary  procedure,  con- 
sisting of  three  judges  instead  of  five,  with  a  provision  thit  tin- 
umpire,  in  case  of  disagreement,  be  selected  by  lot  from  mei.ibers  of 
the  permanent  court  strangers  to  the  controversy.  The  proceedini:^ 
are  in  writing,  with  the  right  of  each  litigant  to  require  the  appear- 
ance of  witnesses  and  experts.  It  was  hoped  that  a  small  court  witli 
a  sunnnary  procedure  might  lead  nations  to  submit  cases  of  minor 
importance  and  thus   facilitate  recourse  to  arbitration   and   diminish 

its  expense. 

From  this  brief  survey  of  the  amendments  to  the  Convention  f  -r 
the  peaceful  adjustnv.'nt  of  international  diflferences  it  will  he  mtii 
that  they  are  not  in  themselves  fundamental,  that  they  do  not  modify 
the  intent  or  purpose  of  the  original  convention,  but  that  they  render 
the  in'^titntion  of  1899  more  efficient  in  the  discharge  of  its  dutie-. 
The  .Americ-in  delegation,  therefore,  assisted  in  the  work  of  revision 
and  signed  the  convention. 

n.— CON-VKNTION    CONCKRNINr,   THF.    MMIT.ATION    OF   THF,    F.M  PI.OVMF  N  T 
OF  FORCF.  IN  THE  COLLFlTION  OF  CONTRACT  DFBTS 

Thi,s  c(jiivontion  is  composed  of  but  two  paragraphs,  and  in  simple^ 
terms  provides  tor  the  substitution  of  arbitration  for  force  in  the 
collection  of  contractual  debts  claimed  of  the  GovernmetU  of  or.c 
country  by  the  Government  of  another  country  to  be  due  to  its  na- 
tionals. The  renunciation  of  the  right  to  use  force  is  explicit,  but  to 


REPORT   OF  THE   AMERICAN   DELEGATION 


lot 


receive  the  full  benefit  of  this  renunciation  the  debtor  must  in  good 
faith  accept  arbitration.  Should  the  parties  be  unable,  or  should  it 
bf  difficult,  to  formulate  the  special  agreement  necessary  for  the  sub- 
mission of  the  case,  resort  may  be  had  to  the  Permanent  I  ourl  for  the 
establishment  of  the  special  agreement  (compromis)  in  accordance 
with  Article  53  of  the  Convention  for  the  peaceful  adju^tnitnt  if  inter- 
national diflftrences. 

Finally,  the  arbitration  shall  determine,  in  the  absence  of  agree- 
ment between  the  parties,  the  justice  and  the  amount  of  the  debt,  the 
time  and  the  mode  of  payment  thereof.  It  would  seem,  therefore, 
that  this  convention  of  but  two  articles  will  prevent  a  recourse  to 
force  in  the  future  for  the  collection  of  contract  debts.  It  should  not 
be  overlooked  that  the  agreement  to  arbitrate  is  obligatory  upon 
debtor  as  well  as  creditor  and  that  the  acceptance  of  the  convention 
is  a  triumph  for  the  cause  of  arbitration.  It  is  true  that  the  right  to 
use  force  was  only  renounced  conditioned  upon  an  arbitration  of  the 
indebtedness,  but  it  is  not  too  tnuch  to  say  that  the  debtor  nation  may 
licnceforth  protect  itself  from  the  danger  of  force  and  tl^at  the  appli- 
cation or  non-application  of  force  really  depends  upon  the  good  faith 
of  the  debtor.  This  convention  was  introduced  by  the  American 
delegation  and  adopted  by  the  Conference. 


111. 


-CONVENTION  REL.^TIVE  TO  THE  OrF.NINO  OF  HOSTILITIES 


i 

i 


''i 


Tlie  convention  is  very  short  and  is  based  upon  the  principle  that 
neither  belligerent  should  be  taken  by  surprise  and  that  the  neutral 
shall  not  be  bound  to  the  performance  of  neutral  duties  until  it  has 
received  notification,  even  if  only  by  telegram,  of  the  outbreak  of  war. 
Tlie  means  of  notification  is  considered  unimjwrtant,  for  if  the 
neutral  knows,  through  whatever  means  or  whatever  channels,  of  the 
existence  of  war,  it  can  not  claim  a  formal  notification  from  the 
belligerents  before  being  taxed  with  neutral  obligations.  While  the 
itnportance  of  the  convention  to  prospective  belligerents  may  be  open 
to  doubt,  it  is  clear  that  it  does  safeguard  in  a  very  high  degree 
tile  rights  of  neutrals  and  specifies  authoritatively  the  exact  moment 
when  the  duty  of  neutrality  begins.  It  is  for  this  reason  that  the 
.-\nurican  delegation  supported  the  project  and  signed  the  convention. 


1 


102 


THE   IIAC.UIC  CONFKRENCF.  OF   1907 


IV.—CONVEMION    CONCKBNINC.    T»K    I.AWS    ANI)    CUSTOMS   OF    WAR    ON 

LAND 

The  Conference  of  18W  coditkd  tlie  laws  of  warfare  on  land  wiiliin 
tlie  compass  of  sixty  articles,  to  which  was  prefaced  an  introduction 
of  a  formal  nature  consisting  of  five  articles.  The  recent  Confer- 
ence revised  the  convention  of  18'W,  modified  it  in  parts,  and  addtd 
various  provisions  in  order  to  render  the  codification  as  complete 
and  thorough,  as  accurate  and  scientific,  as  the  changeable  nature 
of  the  subject  will  pernut.  Following  the  arrangement  of  18"W, 
the  revised  convention  contains  several  introductory  articles,  one  of 
which  will  be  discussed  later.  The  various  modifications  and  the 
additions  of  the  revised  convention  will  be  briefly  set  forth  in  the 
order   of  the   convention. 

Article  2  is  substantially  the  original  text  of  1S99.  with  the  addi- 
tional requirement  that  the  population  of  a  non-occupied  territory 
shall  be  coii>idered  as  belligerent  "if  it  carries  arms  openly  and 
respects  the  laws  and  customs  of  war."  States  with  large  perma- 
nent armies  are  unwilling  to  accord  belligerent  rights  to  populatioii, 
rising  at  the  approach  of  an  enemy.  The  smaller  States,  on  the 
contrary,  which  do  not  maintain  large  standing  armies,  rely  upon 
the  i)atrioti-m  of  the  mass  of  the  people.  This  article  is  conciived 
in  the  interest  of  the  small  Power  with  a  small  standing  army,  but 
reciuire^  that  the  jwijulation  shall  not  only  conform  to  the  laws  of 
w.ir,  b'lL  shall  bear  arms  openly,  so  that  their  military  chaiactrr 
may  be  evident. 

Article  .=^  i-  amended  in  the  interest  of  the  prisoners  of  war.  In  it- 
original  form  the  article  periiiiiti'i!  tli-  iuuriiniein  (.t  prisoner-  iii.l 
their  confinement  "a-  an  indispen^abk■  me.isuie  of  security."  I  lit 
ri'dit  of  continemetit  is  restricted  bv  the  addition  of  the  pbra-e  'iiKi 
onlv  during  the  existence  of  the  circumstances  which  necesMtate  that 
tneasnre. 

.Article  ^)  i>  ^liglillv  modified  and  imijroved  by  withdrawing  t'rniu 
captor  State-  the  right  to  tttili/e  the  l.'ibor  of  "comnii--ioiu''l  -Ir 
cers."  The  final  parayraiih  of  the  original  article  i>rovided  that 
prisoners  should  be  paid  for  their  work  and  labor  according  to  the 
tarilTs  in  force  for  -oldiers  of  the  national  army.  .\s  it  appears! 
th.at  tariffs  in  thi-  cise  were  not  miiversal,  the  following  claiist-  \va- 
added:  "If  there  are  no  established  rates,  at  rates  appn>priate  to 
the  work  done." 


REPORT  OF   TIIK    AMERICAN    DEI-KC ATION 


103 


riie  bureau  of  iiiforniatii>ii  rt'^jardinj;  pri^uncr-.  of  war  was  c^tib- 
lishcd  by  Article  14  and,  altlioujjh  excellent  iti  concei)tion,  i>  licfcc- 
tivo  ill  certain  reparils;  for  example,  inadenuate  provision  is  made  for 
keeping  the  records  of  individii;il  prisoners  of  war  and  for  the  dis- 
position of  their  records  at  the  termination  of  the  war.  The  revision 
sui)plies  the  omissions. 

.\rticle  17  in  origitial  form  provided  that  officers  who  were  pris- 
oners of  war  should  receive  pay  according  to  the  tariff  of  their 
country.  As,  however,  many  nations,  including  tlie  L'nited  States, 
allow  no  pay  to  such  prisoners,  the  article  was  revised  and  modified 
to  read  as  follows : 


1 


The  (ioveniment  will  allow  to  officers  who  are  prisoners  in  its 
hands  the  pay  to  which  ot'ticers  of  the  same  grade  are  entitled  in 
its  own  service,  subject  to  the  c(jndition  that  it  shall  he  reimbursed 
by  their  own  Ciovernment. 

To  a  nation  w'.:ich  cultivates  neutrality  this  provision  can  impose 
no  serious  burden. 

.\rticle  23  prohibits  certain  means  .)f  destruction  and  certain  actions 
(if  belligerents.  To  the  large  category  are  added  two  additir)nal 
paragraphs.  It  is  forbidden  to  declare  extinguished,  suspended,  or 
in.iilmi^sible  in  courts  of  justice  the  rights  and  choses  in  action  of  the 
citizen^  or  subjects  of  the  adverse  party.  The  second  addition  de- 
mands more  than  a  quotation,  for  the  ailditional  paragraph  forbids 
a  belligerent  to  force  enemy  citizens  or  subjects  into  taking  part 
;n;aiti>-t  their  country,  even  although  such  citizens  or  subjects  iiiay  have 
been  in  its  service  before  the  commencement  of  the  war.  While  it  can 
r.'it  lie  -aid  that  w.ir  is  exclusively  .i  relation  between  State  an(|  State, 
the  modem  tendency  is  to  exclude  peaceful  non-combat.ints  from  its 
rigors.  The  inhibition  of  this  paragraph  frees  t'le  popuVitinn  nf  .-.n 
invaded  territory  from  being  called  ui)on  and  forced  to  serve  and 
extcn-N  the  inhibitinn  to  those  who  m;u  havi  been  in  the  service  of 
thi'  belligerent  before  the  (Uitbreak  of  the  war.  Attention  may  be 
calUd  in  this  place  to  .\rticle  44,  which  further  extends  and  --ate- 
i^uiircl-  the  right  <if  the  inhabitants  of  orcu|)ied  territory  hy  forbidding 
tlie  iiieiny  tu  force  the  inhabit.mts  to  give  information  concerning  the 
"P]io-ing  .-imv.   or  it>  jiiean^  of  defense. 

\'h'.'   original    .Xrtiele    2?    forl)ade    belligerents    to    ;itlack    or    bom- 
bar'l  undefended  town^,  vilbiges.  dwelling  places,  or  buildings.     The 


IW 


THE   HAGUE  CONFERENCE  OF   1907 


(ramer>  of  this  article  had  in  view  the  ordinary  means  of  attack  and 
bomliardnu-nt.  The  incrcaMd  iniploNnunt  of  l)alUKjiis  or  other  hke 
ayencics  in  mihtary  operation^  sugKi:sli''l  '•'«;  insertion  of  tlie  phra^- 
"by  any  means  whatsocvir,"  so  tliat  undefended  towns,  vdlanis 
dweinnKs.  or  buihhnK's  are  not  suhject  to  land,  aerial,  or.  as  will  be 
seen  later,  naval  attack.  (See  Convention  IX.)  In  Article  27  hi>- 
t.Mical  monument,  are  inchuled  m  the  buddings  exempt  fr.mi 
bombanlment. 

A  slight  addition  is  made  to  Article  52,  providing  that  the  paynunt 
of  levies  in  kind,  verified  by  receipts,  "shall  be  arranged  for  as  sc  ,. 
as  possible."     A  nearer  approach  is  thus  made  to  final  payment. 

Article  Si  as  atnended  bring-  within  the  scope  of  military  oiur- 
ations  "all  means  of  conmumication  and  of  transport  employid  ,n 
land  or  sea  or  in  the  air  for  the  conveyance  of  persons,  thing-,  or 
messages,"  but  provides  that  they  shall  be  restored  and  indemui;  . 
agreed  upon  at  the  establishment  of  peace.  The  last  paragrapli  (.1 
the  article  provides  that  submarine  cables  connecting  the  occupied  or 
hostile  territory  shall  only  be  subject  to  destruction  or  seizure  in  i;i-c 
of  absolute  nece>Mty.  They  are  likewise  to  be  restored  and  inltni- 
nities  agreed  upon. 

Such  are  the  changes  suggested  by  the  experience  of  the  pa>t  n-lit 
years  proposed  to  and  adopted  by  the  Conference.  Few  in  ir.iniber 
their  importance  is  considerable,  if  for  no  other  reason,  tli.it  t!iiv 
make  for  completeness,  supplying  omissions  and  resolving  doula- 
An  officer  in  the  field  can  not  well  be  expected  to  weight  and  Kdima- 
with  nicety  the  vexe.t  problems  of  international  law.  A  clear  iind 
concise  code  is  what  he  needs  and  must  have.  This  the  convention 
-upi.lie-,  and  it  mu^t  therefore  be  widely  acceptable,  although  w.'  niav 
well  cherish  the  hope  that  its  dispositions  may  not  be  tested  f-:  .  a'- 
upon  tl.e  battlefield  or  in  campaign. 

In  one  respect,  lujwever,  the  revised  convention  cloarl\  ?nriM--e^ 
its  predecessor,  for  Article  ?>  of  the  introduction  supplies  a  >.r.Kt:on 
for  the  violation  of  its  provision-.     To  quote  literally: 

The  belligerent  partv  who  shall  violate  the  requirements  of  tlioe 
regidations  -hall  be  held  to  indenmity  in  a  proper  ca-e.  It  wi!! 
be're-ponsible  for  all  acts  committed  by  persons  formmg  a  \r.iv\  t 
its  armed  forces. 

I'pon  this  article  and  the  reasons  prompting  it  the  military  dele- 
gate uses  the  following  apt  and  convincing  language: 


BEruRT  OP   THE   AMERICAN    I  KLF.t.ATION 


105 


It  K  riiic  of  till-  most  essential  nilts  of  intirnational  good  iii-inh- 
horliuod  that  tlic  States  comjKisinj;  the  f.iniily  of  nation^  shall  be 
{juidcd  by  tht-  highest  gix)d  faith  in  the  execution  of  their  treaty 
obligations.  The  rules  of  war  of  IKW  form  no  exceptimi  to  this 
wholesome  and  necessary  rule.  It  should  be  observed,  however, 
that  the  several  requirements  of  the  undertaking  are  carried  into 
effect — not  under  the  immediate  control  and  direction  of  the 
foreij,"!!  offices  of  the  .si(,'iiatory  I'owers,  but  by  military  officers  in 
the  theatre  of  hostile  activity,  each  acting  v^ithin  the  sjihere  of  his 
command  and  duty  m  the  military  establishment  of  the  belligerent 
imdor  whose  Hag  he  serves.  It  is  not  surprising  that  diflFerenccs 
of  interpretation  and  of  execution  should  have  arisen  in  the  appli 
cation  of  the  convention  of  18''*>,  or  that  imdue  severity  -hoidd 
have  been  shown,  from  time  to  time,  in  the  exercise  of  authority 
In  subot  ;linate  commanders.  To  ct)rrect  this  dangerous  tendencv 
and  giv.'  due  emphasis  to  the  well-established  administrative 
jiriticiple  that  the  State  itself  is  resjKjnsible  for  the  acts  of  its  mili 
tary  commanders  and  subordinate  agents,  jt  was  dete.'uined  '• 
aild  a  concluding  paragraph  having  some  of  the  as|)ecis  of  » 
penal  clause.  It;  ofuration  will  be  to  re(|uire  those  charged  by 
their  Government'  with  the  exercise  of  high  military  command  t" 
maintain  such  a  constant  supervision  over  the  acts  of  their  sulwr- 
'linates  as  will  be  calcidated  to  secure  the  exact  and  rigorou- 
nforcement  of  the  several  re(|uirements  of  the  convention. 

If  the  circumstances  of  a  particular  war  are  such  as  to  si'ggesi 
ll'c  application  of  a  rule  of  lim'    '  'm  to  cases  arising  under  t'lc 
-tide,  such  mutual  stipulations  ,.  "ar<l  as  are  warranteil  n- 

the  facts  may  properly  find  a  place  .  -eaty  of  peace. 


'-i 


v.— CO.NVENTION     CON     KRNINC.     THE    RIGHTS    AND   DUTIES   OF    NEl   !  h     L 
POWERS    AND    I'ERSON'S   IN    LAND    WARFARE 

This  convention  is  divided  into  five  chapters,  dealing,  respect  ly. 
with  the  rights  and  duties  of  neutral  Powers  (Arts.  1-10),  prisoners 
and  wounded  in  neutral  territory  (Arts.  11-15),  neutral  persons  (Arts. 
li>-18),  railroad  material  (Art.  19),  and,  finally,  dispositions  of  a 
li.rmal  nature. 

The  various  provisions  of  the  first  chf ,!  er  are  largely  declaratory 
of  international  law  and  of  recognized  usage,  providing,  generally, 
for  the  inviolability  of  neutral  territory  (Art.  1)  and  that  lorcible 
repression  of  violations  of  neutral  territory  can  not  be  considered  a 
hostile  act  (Art.  10) ;  that  belligerents  may  not  use  neutral  territory  for 
purposes  of  transit  either  of  army  or  supplies  (Art.  2)  ;  that  bellig- 
erents   shall    not    install    upon    neutral    territory    wireless-telegraph 


lOT) 


TMK    UAlirK  CONKKRF.NfK.  "F    l'W7 


apparatus    (Art.    3);    that    detachments    shall    not    Iw    rccniitcl   nr 
enrolled  in  neutral  territory  (Art.  4).  but  a  neutral  is  not  taxed  uith 
resiKjnsibility    by    the    sole    fact    that    individuals    pass    its    i-unUn^ 
singly  to  take  service  with  the  enemy  (Art.  6)  ;  that  the  neutral  sl.o.il,! 
not    tolerate    upon    its    territory    any    acts    falling;    within    .Xrtuk- 
.M.  l.nt  is  oulv  constrained  to  punish  these  act>  ;!•>  contrary  |..  lun 
trality    if    actually    committed    ujJon    its   territory    (Art.  5);    tli.it    ,i 
neutral  is  not  toun.l  t..  forbid  or  hinder  the  exiK>rtation  or  tr.i.,>.t 
for  the  account  of  either  belliRerent.  of  arms,  munitions,  or,  m  «cn 
eral.  of  anythinR  which  may  be  useful  to  an  army  or  fleet  (Art.  7) 
nor  is  it  obliged  to  interdict  or  restrain  the  use  by  belligerents  of  ii. 
cables,  telephones,  or  telegraphic  apparatus,   whether  owned  hv  i!u 
state  or  private  companies  (Art.  8) ;  but  the  provisions  of  Articlo,  , 
and  8  shall  be  applied  indiscriminately  to  either  belligerent. 

The  provisions  of  the  chapter  dealing  with  the  treatment  in  luutr.il 
countries  of  interned  prisoners  and  wounded  are  humanitari.m  in  all 
their  parts  and  require  no  comment. 

Chapter  III,  <lealing  with  neutral  persons,  i?  it  a  fragment  oi  the 
various  articles  submitted  by  the  C.erman  delegation  to  safeguard  ibc 
rights  of  neutral  persons  and  property  found  upon  enemy  tcrriiorv 
Hricfly.  they  may  be  summarized  as  follows:  Citizens  or  subject-  oi  .i 
neutral  State  not  taking  part  in  the  war  are  considered  neutrals  i  Art 
16)  :  but  lose  thir  neutral  character  if  they  cfmimit  acts  of  lio-tilitv 
against  or  in  favor  of  a  belligerent,  especially  if  they  take  service  uith 
one  or  the  other  enemy  (Art.  17).  The  neutral  character,  bow.vcr, 
is  not  forf..Mted  by  the  following  acts: 

,1.  Supplies  furnished  or  loans  voluntarily  made  lo  .nc     i  r 
belligerent  parlies,  provided  tlu-  fiirni'^luT  or  lender  i-  imt  a  ■:<'"^^- 
deiit  of  the  territory  of  the  other  (Mrty  or  of  territory  iii  it-  nii;: 
tirv  occupation  and  the  supplies  furnished  are  not  fnrni-'  .-,1  tr  ■ 
either  of  these  territories.  •    ,      , 

/'.  Services  rendered  in  connection  with  police  or  civil  .idni  ;  -- 
tratioii. 

Ch.ipter  I\  consists  of  hut  a  single  article,  providintr.  liri.llv,  that 
railroad  materi:d  belonging  to  neutral  states,  corporations,  cr  private 
individuals  sh.nll  only  be  requisitioned  or  used  by  a  belliijerent  in  ca-e 
of  imperious  necessity:  that  it  shall  be  returned  to  the  country  of 
origin    ns    soon    as   possible;    that    a   neutral    may    u-e   like   iini|Hrt\ 


HF.POUT  or  Tiir.  amkrican  nri.F.r.ATioN 


107 


ticloiiffinK  to  a  iH-lliKcrent  in  case  of  necessity,  anil  that  an  indemnity 
shall  be  paid  for  such  use  (Art.  19).  This  last  article  is  unlikely  to 
have  any  >;reat  iiniwrtancc  in  a  coiuitry  so  <^ituated  as  the  United 
Slates,  but  to  a  country  surroiuidcd  l>v  Ntronj;  and  jKivverful  ncigh- 
l)ors,  as  is  I.uxeniburjj,  the  profxjser  of  the  artic  Ic,  it  may  he  of  no 
little  advantaRC. 

The  convention  as  a  whole  received  the  support  of  the  American 
tUlt^;ation  and   was  si^jned  by  the  plenipotentiaries. 


VI  —CONVFNTIO.V   Ri  (,ARDIN(.  TIIK  KNKMY  S  SIIII'S  OF  (DMMKRCF.  AT  THE 

iulinimim;  ok  iiosrii.iTlKS 

The  uninterrupted  practice  of  bellifjerenl  Powers  since  the  outbreak 
of  the  Crimean  war  has  been  to  allow  enemy  merchant  vessels  in  their 
jmrfs  at  the  outbreak  of  hostilities  to  depart  on  their  return  voyages. 
The  same  privilejje  has  Iktu  accorded  to  enemy  merchant  vessels 
which  sailed  before  the  outbreak  of  hostilities,  to  enter  and  depart 
from  a  helligcrent  port  without  molestation  on  the  homeward  voyage. 
It  was  therefore  the  view  of  the  .American  deIei,Mtion  that  the  privi- 
le>,'e  had  acquired  such  international  force  as  to  place  it  in  the  category 
of  obligations.  Such,  indeed,  was  the  view  of  a  majority  of  the  Con- 
ference, hut  as  the  delegation  of  (ireat  Britain  adhered  to  the  opinion 
that  such  free  entry  and  departure  was  a  matter  of  grace,  or  favor, 
and  not  one  of  strict  right,  the  articles  regard  it  as  a  delay  by  way  of 
favor  and  refer  to  the  practice  as  desirable. 

In  support  of  the  .American  view  the  case  of  the  Bucna  Ventura  is 
in  point.  This  case  was  decided  in  1809,  and  in  his  opinion  Justice 
I'eckham  says: 

It  being  plain  that  merchant  vessels  of  the  enemy  carrying  on 
innocent  commercial  enterprises  at  the  time  or  just  prior  to  the 
time  when  hostilities  between  the  two  countries  broke  out  wonlil, 
in  iicconlaiice  with  the  later  practice  of  civilized  nations,  he  the 
suliject  of  lilK-ral  treatment  by  the  F.xecutive,  it  is  necessary  when 
hi^  proclamation  has  been  issued,  which  lays  down  rules  for  treat- 
ment of  merchant  vessels,  to  put  upon  the  worcls  used  therein  the 
most  liberal  and  extensive  interpretation  of  which  they  are 
cqiable;  and  where  there  are  two  or  more  interpretations  which 
IHjssibly  might  be  "^ut  upon  the  language,  the  one  that  will  Ix- 
niost  favorable  to  t  >  bclli.^crent  party,  in  whose  favor  the  procla- 
iiKifi'in  is  {--sued,  o   ^lit  to  he  adopted. 

This  is  the  doctrine  of  the  English  courts,  as  exemplified  in  The 


log  THE  HAGUE  CONFERENCE  OF   1907 

Phoenix  (Spink's  Prize  Cases.  1,  5)  and  The  Argo  (Id.,  p.  52). 
It  is  the  doctrine  which  this  court  beheves  to  be  proper  and  cor- 
rect.    The  Buena  Centura  (175  U.  S.,  388). 

At  the  first  reading,  the  convention  seems  to  confer  a  privilege  upon 
enemy  ships  at  the  outbreak  of  war.  Free  entry  and  departure  are 
provided  for,  ships  are  not  to  be  molested  on  their  return  voyages, 
and  a  general  immunity  from  capture  is  granted  to  vessels  from  their 
last  port  of  departure,  whether  hostile  or  neutral.  But  all  these  im- 
munities are  conditioned  upon  ignorance  of  the  existence  of  hos- 
tilities on  tlie  part  of  the  ship.  This  condition  forms  no  part  of  the 
existing  practice,  and  it  was  the  opinion  of  the  delegation  that  it 
substantially  neuti^lized  the  apparent  benefits  of  the  treaty  and  puts 
merchant  shipping  in  a  much  less  favorable  situation  than  is  accorded 
to  it  by  the  international  practice  of  the  last  fifty  years. 

An  enemy  merchant  vessel  approaching  a  hostile  port  which  is 
notified  by  an  armed  cruiser,  or  which  obtains  the  information  under 
circumstances  calculated  to  charge  it  with  knowledge  of  the  fact  that 
hostilities  exist,  forfeits  the  immunities  conferred  by  the  treaty  and 
becomes  co  histante,  liable  to  capture.  As  the  freight  trade  of  the 
world  is  carried  on  in  steamers  which  habitually  carry  only  enough 
coal  to  reach  their  destination,  the  operation  of  the  treaty  is  to  render 
them  instantly  liable  to  capture,  the  alternative  being  to  continue  to 
the  hostile  destination  and  surrender. 

The  convention  operates  powerfully  in  favor  of  a  State  having  a 
predominant  naval  force  and  possessed  of  numerous  ports  throughout 
the  world,  so  situated  that  a  merchant  vessel  carrying  its  flag  may 
take  refuge  in  such  ports  on  being  notified  that  hostilities  exist.  All 
other  Powers  would  be  placed  in  a  position  of  great  disadvantage,  and 
their  merchant  marine  would  suffer  incalculable  injury  as  the  result 
of  its  adoption. 

The  effects  upon  the  practice  of  marine  insurance  are  also  'm\)OT- 
tant.  The  ordinary  contract  does  not  cover  a  war  risk.  The  oi>era- 
tion  of  a  war  risk  is  simple  because  its  conditions  and  incidents  are 
fully  known.  Hut  a  policy  calculated  to  cover  the  contingency  of 
capture,  the  risk  of  depending  upon  the  chance  or  possibility  of  notifi- 
cation would  introduce  an  element  of  uncertainty  into  marine  ri'^k^ 
which  in  view  of  the  inverests  at  stake,  should  not  be  encouraf^cil. 
The  convention  also  presents  an  undesirable  alternative  in  the  treat- 


REPORT  OF  THE   AMERICAN    DELEGATION 


109 


ment  of  enemy  merchant  ships,  in  that  it  provides  that  in  certain  cases 
they  may  be  seized  "subject  to  restoration  after  the  war  without 
indemnity"  or  to  "immediate  requisition  with  indemnity."  As  mer- 
chant marine  commerce  is  carried  on  it  is  obvious  that  the  condition 
of  the  cargo  which  is  detained  in  indifferent  or  inefficient  custodian- 
ship during  the  ordinary  duration  of  war  would  approach  confisca- 
tion. It  would  also  be  substantially  impossible  to  make  such  a  risk 
the  subject  of  a  practicable  contract  of  insurance. 

The  foregoing  convention  was  not  signed  by  the  delegation,  and 
its  acceptance  as  a  conventional  obligation  is  not  recommended. 


VII. — CONVENTION    FOR   REGULATING   THE   TRANSFORMATION  OF   VESSELS 
OF  COMMERCE   INTO  VESSELS  OF   WAR 

The  delegation  found  no  objection  to  the  requirements  of  the  fore- 
going convention  in  so  far  as  its  application  to  the  transformation 
of  purchased  or  chartered  vessels  into  public  armed  vessels  is  con- 
cerned. 

The  preamble  recites  the  fact  that  the  Powers  have  been  unable 
to  come  to  an  agreement  as  to  the  transformation  of  a  merchant 
vessel  into  a  public  armed  vessel  on  the  high  seas  in  time  of  war. 
For  that  reason  the  convention  is  silent  as  to  the  place  where  such 
transformation  shall  take  place,  and  the  several  articles  of  the  con- 
vention are  restricted  in  their  operation  to  such  other  incidents  of 
the  transformation  as  relate  to  the  authority  to  make  it,  the  public 
record  of  the  fact,  the  external  marks  of  the  transformed  vessel,  the 
character  of  the  officers  and  crew,  the  discipline  to  be  maintained 
and  the  subjection  of  the  vessel  in  its  operations  to  the  rules  of 
maritime  warfare. 

It  will  be  noted  that  the  question  of  the  place  where  the  trans- 
formation of  vessels  of  commerce  into  vessels  of  war  is  expressh- 
excluded  by  the  preamble  to  the  convention  because  the  Conference 
\va>  unable  to  harmonize  the  divergent  views  upon  this  matter.  The 
American  (lcles;ation,  wishing  to  obviate  controversies  in  the  fit  ure, 
insisted  that  the  transformation  should  take  place  either  within  the 
home  port  or  territorial  waters  of  the  transforming  country.  Other 
delegations  insisted  that  the  transformation  might  take  place  not 
only  within  the  home  ports  and  territorial  waters,  but  upon  the  high 
seas,     .^s  the  difference  of  opinion  was  radical  and  irreconcilable,  it 


no 


THE  HAGUE  CONFERENCE  OF  1907 


was  agreed  to  eliminate  the  question  from  the  convention,  but  with 
such  elimination  the  convention  ceased  to  have  any  great  value. 

The  delegation  would,  perhaps,  have  approved  and  signed  the  con- 
vention as  it  stands  were  it  not  for  the  fact  that  the  Conference  con- 
sidered its  provisions  as  the  corollary  of  the  Declaration  of  Pans  ami 
as  a  guaranty  against  a  more  or  less  disguised  return  to  the  practice 
of  privateering.  The  United  States  has  not  renounced  the  right  to 
re-^ort  to  privateering,  although  it  has  on  various  occasions  expressed 
a  winingnes.s  so  to  do  if  the  inviolabilty  of  unoffending  private 
property  belonging  to  the  enemy  on  the  high  seas  be  guaranteed. 
The  American  delegation  made  a  declaration  to  that  effect  at  the 
thirteenth  session  of  the  committee  of  examination  and  repeated  iit 
at  the  seventh  plenary  s,  ssion  of  the  Conference  on  September  27. 
1907,  in  the  following      iguage: 

It  is  evident  that  the  propositions  incorporated  in  the  report  of 
the  committee  of  examination  have  for  their  principal  object  the 
reiteration  of  the  Declaration  of  Paris  relative  to  the  abolition 
of  privateering.  It  is  well  known  that  the  Government  of  the 
United  States  of  America  has  not  adhered  to  that  declaration  icr 
the  sole  reason  that  it  refuses  to  recognize  the  inviolability  oi 
private  property  on  the  high  seas.  The  propositions  submitted 
present  juestions  solely  for  the  consideration  of  the  1  Muer~ 
which  are  signatories  of  the  Declaration  of  Pans,  and  conse- 
quentlv  our  delegation  must,  for  the  present,  decline  tu  participate 
in  the^r  iliscussion  and  abstain  from  votmg.  If,  however  the 
Conference,  by  its  action,  should  establish  the  -nviolability  of  pri- 
vate property  on  the  seas,  this  delegation  would  be  plea-ed  to 
vote  for  the  abolition  of  privateering. 

The  delegation  was  not  unmindful  of  an  internal  and  ronstitutinn.il 
question  in  taking  this  action,  for  Congress  is  given  by  the  Ccm- 
.^titution  the  power  "to  declare  war,  grant  letters  of  marque  aiul 
reprisal,  and  make  rules  conceniing  i  q.tures  on  land  and  wator. 
(Constitution.  Art.  I.  sec.  8.  cl.  10.)  .M  various  times  Congre>^  ha^ 
exercised  this  right,  by  the  Acts  of  June  18.  1812.  June  2i^.  l!^i:.  mi 
lanuary  27.  181.^.  the  latter  two  in  furtherance  of  or  amciidmciu  t.. 
the  original  .Act  of  1812.  In  view  of  the  constitutional  oripn  and 
nature  of  the  right  to  grant  letters  of  marque  and  reprisal,  and  in 
view  of  the  fact  that  this  right  ha^  been  exercised  by  Coni;re-.  it 
seemed  to  the  American  delegation,  inadvi^.ahle  to  seek  to  bind  the 
United  States  by  conventional  stipulations. 


REPORT  OF  THE  AMERICAN    DELEGATION 


111 


V,]I. CONVENTION   IN   REGARD  TO  THE   PLACING  OF  SUBMARINE   MINES 

The  question  of  imposing  restrictions  upon  the  emplo>inent  of 
submarine  mines  gave  rise  to  extensive  discussion  and  was  made 
the  subject  of  numerous  propositions.  Some  of  these  were  adopted 
and  some  were  rejected  by  the  Conference.  It  is  quite  safe  to  say, 
however,  that,  due  to  the  enormous  loss  of  life  and  property  as  a 
result  of  the  floating  mines  in  the  China  Sea  since  the  close  of  hos- 
tilities in  the  vicinity  of  Port  Arthur,  international  public  opinion 
now  demands  that  anchored  mines  which  may  break  loose  from  their 
niocrings,  shall,  by  the  fact  of  going  adrift,  become  harmless.  There 
is  a  similar  demand  that  non-anchored  mines,  if  employed  by  bellig- 
erents in  time  of  war,  shall  become  inoffensive  withm  a  very  short 
time,  one  or  two  hours  at  the  longest,  after  they  have  passe^^  out 
of  the  control  of  the  party  who  planted  them  in  the  high  seas  or 
in  the  territorial  waters  of  a  belligerent.  Beyond  this,  if  there  has 
been  a  formulation  of  public  opinion,  it  is  not  unanimous  and. 
possibly  for  that  reason,  has  not  found  unequivocal  expression. 

The  clauses  which  were  inserted  in  deference  to  the  demands  of 
the  insistent  public  opinion  of  the  civilized  world  are  embodied  in 
'he  three  numbered  paragraphs  of  Article  1.  In  Article  2  the 
,ilacing  of  mines  is  prohibited  along  the  coast~  or  before  the  ports 
of  an  adversary  for  the  sole  purpose  of  interrupting  commercial 
navip;ation.  In  other  words,  a  blockade  may  not  be  established  and 
maintained  by  the  sole  use  of  submarine  mines.  .Articles  3,  4. 
and  .=;  are  intended  to  provide  for  the  safety  of  navigation  of  mine 
t'lelds  by  commercial  vessels  and  to  insure  the  removal  of  mines 
at  the  close  of  the  war.  Article  4  permits  neutrals  to  use  mines 
m  the  enforcement  of  their  neutral  rights  and  duties.  .Article  6 
contains  the  stipulation  that  powers  whose  existing  systems  of  mine 
ili-tcnse  do  not  conform  to  the  requirements  of  the  convention  '-hall 
l>rini;  about  such  conformity  "as  soon  as  possible."  In  .\rticle  7  the 
litf  of  the  convention  is  restricted  to  •ieven  years,  or  until  the  close 
of  a  tliirrl  Peace  Conference  if  that  date  is  earlier. 

T'lc  convention  as  adopted  by  the  conference  in  plcnnrv  session  na- 
i:eneral!\-  acceptable  to  maritime  Powers  and  was  approved  by  the 
(li''ct;atioii  of  the  United  States. 


112 


THE    HAGUE    CONFERENCE    OF    1907 


jX.— CONVENTION     CONCERNING    THE    BOMBARDMENT    OF     UNDEFENDED 
PORTS,  CITIES,  AND  VILLAGES  BY    NAVAL   FORCES   IN   TIME  OF   WAR 

The  question  which  the  Conference  undertook  to  regubte  by  a  con- 
vention might  be  considered  academic  were  it  not  for  the  fact  that  the 
possibihty  of  the  bombardment  of  undefended  ports,  cities,  and  vil- 
lages has  been  suggested  and  fear  expressed  that  it  be  carried  iiilo 
practice.  It  is  therefore  advisable  to  prevent  in  express  terms  the 
occurrence  of  such  bombardments;  a  precedent  exists,  and  the  con- 
vention brings  the  rules  of  land  and  naval  warfare  into  exact  harmony. 
For  example,  the  rule  adopted  by  the  Conference  of  1899  is  as  follows: 
•'The  attack  or  bombardment  of  towns,  villages,  liabitatioii>,  or 
dwellings  which  are  not  defended  is  prohibited."  (Convention  con- 
cerning laws  and  customs  of  land  warfare  of  1899,  Art.  25.) 

In  applying  a  remedy  to  the  situation  above  outlined,  the  Confer- 
ence '>°nt  somewhat  beyond  the  strict  necessities  of  the  case.  Tlv.' 
prohib.'i  n  in  respect  to  bombardment  is  embodied  in  Article  1  of  tin 
convention,  the  last  clause  of  which  contains  the  wholesome  require- 
ment that  the  mere  fact  that  submarine  mines  are  planted  in  from 
of  a  particular  port  or  place  shall  not  operate  to  take  it  out  of  the 
class  of  undefended  towns. 

In  Article  2,  which  is  in  the  nature  of  an  excepting  clause,  a  naval 
force  is  authorized  to  be  employed  against  "military  works,  military 
or  naval  establishments,  depots  of  arms  or  material  of  war,  ^hops 
aiKl  establishments  suitable  to  be  utilized  for  the  needs  of  the  eiieni^^ 
army  or  navy,  and  vessels  of  war  then  in  port."  This  requircnKMU 
may  be  properly  regarded  as  declaratory  of  the  existi  ig  rule,  whuh 
authorize^  th-  destruction  of  works  or  establishnu-iits  in  whuh 
material  of  war  is  manufactured.  The  mere  presence  of  an  a'  ud 
vessel  in  the  port  operates  to  take  the  place  out  of  the  cl:i-.  of  iin.li- 
fended  towns. 

Article  3  authorizes  the  employment  of  naval  fore-  to  cut  :r>e 
compliance  with  a  proper  naval  requisition— as  for  coal  or  provi>io:i^ 
If  the  right  to  impose  requisitions  be  conceded— and  none  is  luttw 
estai)li-heil  in  international  law— it  would  incvital)ly  follow  tlial  tn-o 
may  be  used  to  collect  them.  To  that  extent,  therefore,  .\rtiele  .i  i- 
declaratory.  The  rc<iuirenient  in  respect  to  the  amount  and  char- 
acter of  the  requisition  is  not  only  new,  but  proper. 

In  Article  4  it  is  expressly  forbidden  to  bombard  undefended  town:- 


REPORT  OF  THE   AMERICAN    DELEGATION 


113 


for  the  nonpayment  of  contributions  as  distinguished  from  requisi- 
tions.   This  is  a  wise  and  salutary  provision. 

Chapter  II  is  intended  to  regulate  the  naval  bombardment  of  forti- 
fied places  and  defended  towns  .Tid  imposes  upon  the  attacking  force 
the  same  restrictions  in  respect  to  historical  monuments,  churches, 
artistic  and  scientific  collections,  hospital-,  and  similar  edifices,  which 
are  already  recognized  in  land  warfare.  (Art.  27,  Hague  Con- 
vention, 1899.)  It  is  also  made  the  duty  of  the  local  authorities  or 
inhabitants  to  designate  the  buildings  which  are  entitled  to  iiuiiinnity 
by  a  conventional  sign,  consi-ting  of  two  large  rectangles  on  which 
two  triangles  are  superposed,  the  upper  one  being  colored  black  antl  the 
lower  white. 

Article  6  charges  the  commander  of  the  attacking  forces  with  the 
duty  so  far  as  the  military  necessities  permit,  of  doing  everything  in 
his  power  to  warn  the  local  authorities  of  the  intended  bombardment. 
f.\rt.  26,  Hague  Convention,  1899.)  In  Article  7  pillage  is  ex- 
pressly forbidden.     (Art.  2(S.  ibid.) 

From  the  humanitarian  standpoint  the  convention  is  desirable,  and 
it  i-  difficult  to  see  how  naval  operations  can  suffer  by  the  ob- 
servance of  the  conventional  restrictions.  The  American  delegation, 
t'.jrefore,  approved  and   signed  the  convention. 

X. — CONVENTION     FOR    THE    ADAPTATION    OF    THE    PRINCIPLES    OF    THE 
GENEVA   CONVENTION    TO    MARITIME    WAR. 

It  is  the  purpose  of  this  convention  to  replace  the  corresponding 
requirements  of  the  maritime  convention  of  July  29,  1899,  in  respect 
to  tlie  care  and  treatment  of  the  sick  and  wounded  in  maritime  war- 
fare. The  convention  of  1899  was  based  upon  the  humane  but  inade- 
quate, and  to  some  extent  obsolete,  provisions  of  the  Geneva  Conven- 
tion of  1864.  That  convention  has  now  been  replaced  by  the  new 
agreement,  to  which  thirty  States  of  the  civilized  world  were  signa- 
tory parties,  entered  into  at  ( leneva,  Switzerland,  on  July  6,  1906. 

The  Geneva  Convention  of  1906  embodies  the  advances  which  have 
liccii  made  in  the  treatment  of  the  sick  and  wounded  in  the  forty-two 
years  which  had  elapsed  since  the  adoption  of  the  original  agreement 
in  1864.  The  new  undertaking,  which  is  restricted  in  its  operation  to 
warfare  on  land  represents  the  experience  gained  in  recent  military 
optr.itions  in  the  sanitation,  transportation,  and  treatment  of  the  sick 
and  wounded.     It  is  a!-.o  in  close  touch  with  the  great  volunteer  relief 


tvl 


1J4  THE  HAGUE  CONFERENCE  OF   1907 

associations,  of  which  the  Red  Cross  Society  of  the  United  States  is 
an  example,  whose  function  it  is  not  alone  to  ameliorate  the  condition 
of  the  sick  and  wounded  in  time  of  war.  but  to  act  promptly  in  time 
of  peace  with  a  view  to  relieve  hardship  and  suffering  due  to  flcxxl. 
fire    or  famine,  wherever  and  under  whatsoever  circumstances  they 

mav  occur.  _  ,  irw 

To  that  end.  the  convention,  like  the  Geneva  Convention  of  \m. 
provides  a  method  of  coopc-ration  between  the  official  and  charitable 
agencies  which  is  calculated  to  secure  harmonious  and  efficient  action 
in  the  theatre  of  hostile  military  activities. 

It  was  the  purpose  of  the  Conference  to  introduce  such  amendments 
and  ameliorations  into  the  maritime  convention  of  1899  as  wcr. 
thought  necessary  to  bring  it  into  conformity  with  the  humane  re- 
quirements of  the  Geneva  Convention  of  1906.  In  point  of  complete- 
ness and  effic-iency  the  new  convention  leaves  nothing  to  be  desire.l. 

X,._rONVENT.ON    WITH    RtLCARD   TO    CERT.MN    RESTRICTIONS    UPON    THE 
RIGHT  OF  CAPTURE  IN    MARITIME   WAR 

This  convention  marks  an  important  step  in  advance,  in  that  it  con- 
fers an  immunity  from  capture  upon  all  postal  correspondence,  pub- 
lic or  private,  carried  as  mail  on  a  neutral  or  enemy  vessel.  I  he 
parcels  post  is  excepted  or.  to  speak  more  correctly  is  not  expressly 
Lludec'  in  the  convemional  immunity.  The  carrying  vessel  is  no. 
xempt  from  seizure  in  a  proper  case,  but  in  the  event  of  capture  the 
belligerent  becomes  charged  with  the  duty  of  forwarding  the  hkuI. 
to  their  destination  'svith  the  least  possible  delay. 

Violation  of  blockade  is  excluded  from  the  beneficial  operatuu,  <.t 
the  convention  in  Article  1.  and  the  liability  to  search  and  capture 
are  provided  for,  subject  to  reason.ible  restrictions,  m  .\rtic  e  .. 

The  exemption  of  fishing  boats  from  capture  m  time  of  uar  ha- 
been  accorded  in  a  number  of  cases,  notably  in  the  leading  case  .> 
77.-  ra.nutr  IM.:.a  (  [18W!  173  U.  S..  677^.  arising  ont  n,  e 
Spanish  war,  but  there  have  been  exceptions,  and  the  rule  is  1,  im 
nLans  mk-  -f  universal  application.  The  operation  of  the  na.y  - 
to  "ive  u.  the  better  practice  the  sanction  of  conventional  ob  .i,Mt,on 
and"  to  include  small  non-.seagoing  vessels,  exclusively  engaged  ,n  the 
,oa^t  trade,  within  its  beneficial  operation.  .Article  2  corier^  a 
similar  immunity  upon  the  vessel  engaged  in  scientific.  reb;..on.  .: 
philanthropic  missions. 


REPORT  or  THE  AMERICAN    DELEGATION 


115 


The  concluding  chapter  regulates  the  treatment  to  be  accorded 
to  neutral  and  enemy  subjects  found  on  board  a  captured  enemy 
merchant  vessel.  The  language  of  the  naval  delegate  states  the  aim 
and  purpose  of  the  stipulation  in  the  following  concise  and  apt  terms : 

A  distinction  is  made  between  neutral  and  enemy  subjects.  The 
neutral  citizens  or  subjects  in  the  crew  are  released  uncondition- 
ally without  any  engagement.  The  officers  who  are  neutral  citizens 
or  subjects  are  released  upon  giving  a  written  engagement  not  to 
serve  on  board  an  enemy  ship  during  the  war. 

The  enemy  subjects  or  citizens  are  required  to  give  a  written 
engagement  not  to  take  part  in  any  service  having  relation  to  the 
operations  of  the  war  during  the  continuance  of  hostilities. 

The  reserve  contained  in  Article  IV  is  intended  to  apply  to  the 
case  of  vessels  engaged  in  unneutral  service,  such  as  the  convey- 
ance of  fuel  or  supplies  directly  to  the  fleet  and.  in  general  to  mer- 
chant vessels  cooperating  with  naval  forces.  The  crews  of  such 
vessels  under  the  present  rules  of  international  law  are  .-iubject  to 
retention  as  prisoners  of  war  and  no  new  hardship  is  imposed. 

.As  the  convention  in  all  its  parts  is  conceived  in  a  highly  humane 
spirit,  the  American  delegation  both  approved  and  signed  it. 


I  " 

i 


,1 

'i 


Xii.—CONVKNTION    REG.XRDING    THE    ESTACI.ISKMENT    OF    AN    INTERNA- 
TIONAL  PRIZE   COURT 

Tlio  details  of  this  convention,  as  would  be  expected  in  an  act 
organizing  an  international  prize  court,  are  complicated.  The  fnn- 
ilamtntal  principle,  however,  is  simple,  namely,  that  the  court  of 
the  ca])tor  should  not  pass  ultimately  upon  the  propriety  or  impro- 
priety of  a  seizure  made  by  the  national  authorities  of  which  the 
judge  is  a  subject  or  citizen ;  in  other  words,  that  one  should  not 
be  judge  in  his  own  cau'^e.  It  is  stated  by  judges  of  the  higliest 
repute,  the  great  Lord  Stowell  among  the  number,  that  a  prize  court 
is  an  international  court,  although  sitting  within  the  captor's  terri- 
tory and  established  in  pursuance  of  the  rules  and  regulations  issued 
l)v  the  captor;  that  the  law  administered  in  such  a  court  is  interna- 
tional law ;  and  that  the  judgment  of  the  court,  in  the  absence  of  fraud, 
is  universally  binding.  This  may  be  tlie  theory,  although  't  seems 
much  like  a  fiction,  for  the  fact  is  that  prize  courts  or  courts  exer- 
cising prize  jurisdiction  are  constituted  by  the  municipal  authorities ; 
thn;   .he   judges   are   appointed,   as   Oiher   municipal    judges,   by   the 


116 


THE   HACLi:   CUNFKRENCK  OF   1907 


sovereign  power  of  tin-  State ;  that  the  law  administered  in  the  court 
wlietlier  it  lie  largely  international  in  its  nature  or  not,  is  the  munici- 
pal or  the  prize  law  of  the  apix)intin},'  country,  and  that  the  judg- 
ment  delivered   has   the   essential   qualities   of  a  national   judgment. 
Kvcn  if  tiie  court  were  strictly  international,  the  judge  is,  neverthe- 
less, a  citizen  or  subject  of  the  captor,  and  national  prejudicts.  bias, 
or  an  indisposition  to  tiiwart  the  settled  policy  of  his  country  mn^t 
insensibly  mtluence  the  judge  in  the  formation  of  his  opinion.     Th.- 
presumption   is   in    favor  of   the   validity   of  the   capture;   upon   tlic 
neutral  is  imposed  the  hard  and  difficult  task  to  overcome  this  pre- 
sumption, and  the  frequency  with  which  judgments  of  courts  of  prize, 
even  of  the  highest  and  most  respectable  courts,  have  been  protested 
through  diplomatic  channels  and  the  questions  submitted  anew  to  th- 
examination   of   mixed    commissions    and    decided   adversely    to   the 
captor,  would  seem  to  establish  beyond  reasonable  doubt  that,  inter 
national   in   theoo'.   they   are  national   in    fact  and   lack   the   impai 
tiality  of  an  international  tribunal.     Xor  are  instances  lacking  of  tlie 
submission   of   questions   to   a   mixed   commission    which  have   Iwen 
passed  upon  hv  the  Supreme  Court  of  the  I'nited  States  sitting  as  a 
court  of  appeal  in  prize  cases  and  in  which  tlie  United  States  has 
by  virtue  of  an  adverse  decision  of  a  mixed  commissioti  reimbursed 
the  claimants.     Reference  is  made  by  way  of  example  to  the  well- 
known  case  of  The  Circassian  ( [1864]  2  Wall.,  133.  160),  in  which  the 
British  and  American  mixed  commission  made  awards  in   favor  nf 
all  the  claimants.     (4  Moore's  Intcmtional  Arbitrations,  pi).  .V>11- 

3923.) 

Tlie  puri>-i-c,  then,  of  the  convention  is  to  substitute  mternationa! 
for  national  judgment  and  to  subject  the  decision  of  a  national  cnuri 
to  an  international  tribunal  composed  of  judges  trained  in  maritime 
law.  It  wa>  not  the  intention  of  the  framers  of  the  convention  to 
exclude  a  judge  of  the  captor's  country  whose  presence  on  the  bench 
would  ensure  a  careful  consideration  of  the  captor's  point  of  v:ew. 
but  to  make  the  deci<inn  of  the  case  depend  upon  strangers  to  tin- 
controversy  who.  without  special  interest  anil  national  bias,  woitlii 
applv  in  the  -oliUinii  of  the  case  inteniational  law  and  equity.  The 
national  jtul'^ment  l)ecumes  international:  the  judgment  of  the  cnp- 
to.  yields  to  the  judgnient  of  the  neutr.a!,  and  it  can  not  be  doubted 
that  neutral  Powers  are  more  likely  to  guard  the  ri-hts  ..f  neiurals 
than   any   bench   composed   exclusively   of   national    judges. 


REPORT  or   THE   AMERICAN    DELEGATION 


117 


)l 


It  is  not  to  be  prtsumed,  h(  ver,  that  the  jiidpiienl  of  the  captor 
will  be  biased  or,  if  the  judgment  of  the  court  of  first  instant  be  incor- 
rect, that  its  judgment  will  not  be  reversed  on  appeal  to  the  higher 
court.  It  can  not  be  supjioscd  that  a  judgnietit  of  a  district  court  of 
the  United  States,  if  improper,  would  he  affirmed  by  the  Supreme 
Court  of  the  United  States ;  and  it  may  safely  be  assumed  that  few 
litigants  would  care  to  carry  a  case  from  ihe  Supreme  Court  of  the 
United  States  to  an  international  court,  wherever  and  however  es- 
tablished. Delay  and  expense  woulti  militate  against  it,  the  known 
impartiality  and  the  reputation  of  the  Supreme  Court  would  counsel 
against  it,  and  it  would  only  be  an  extreme  case  and  one  of  great  im- 
portance that  it  would  induce  private  suitor  or  National  Government  to 
seek  a  reexamination  of  the  case  before  an  international  court. 

The  American  delegation  was  unwilling  to  allow  an  appeal  directly 
from  the  district  court  to  the  international  court,  as  in  the  original 
(jcrman  project,  holding  that  the  captor's  court  of  appeal  should  be 
given  the  opportunity  to  correct  or  revise  a  judgment  and  that  if  a 
case  be  submitted  to  thi  international  court  that  court  would  derive 
inestimable  benefit  froir.  a  careful  consideration  of  the  judgment  of 
the  Supreme  Court.  The  project  was  amended  so  as  to  permit  one 
national  appeal,  out  of  consideration  to  the  objections  of  the  United 
States  and  Great  Britain,  and  when  so  amended  was  acceptable  to 
both. 

The  provisions  of  Article  46  are  of  importance  in  this  connection. 
This  article  provides,  briefly,  that  each  party  pays  its  own  expenses ; 
the  (k'feated  party  the  expenses  of  the  procedure  and  in  addition  pays 
into  the  court  1  per  cent,  of  the  value  of  the  object  in  litigation  to 
th.-  general  expenses  of  the  court.  Finally,  if  the  suitor  be  not  a 
sovereign  State,  but  a  private  individual,  a  bond  may  be  exacted  by 
the  court  to  guarantee  the  expenses  above  mentioned  as  a  condition 
of  taking  jurisdiction.  It  needs  no  further  argument  to  show  that  a 
case  is  not  likely  to  be  presented  to  the  international  court  unless  the 
amount  or  principle  involved  justifies  the  submission. 

A'lmitting,  however,  the  possibility  of  appeal,  it  is  important,  in 
the  interest  of  international  justice  as  well  as  in  the  interest  of  the 
individual  suitor,  that  there  be  an  end  of  litigation  and  that  the 
principle  of  iaw  applicable  to  the  concrete  case  be  established  in  a 
judicial  proceeding.  It  is  therefore  provided  that  the  appeal  from 
the  courts  of  first  instance  to  the  national  court  of  appeal  shall  have 


11,S  TlIK   HAC.UK  tONKKRFNCE  OF    1907 

been  pertcctfil  and  thi-  case  .Iccided  within  two  years  from  the  date 
of  capture,  which  peri.ul  was  acceptable  to  (ireat  Britain,  a  joint  pro- 
poser  with  (.ernianv,  notwithstandinR  the  fact  that  the  appeal  might 
be  from  a  liritish  vice-admiralty  court  situated  in  a  remote  (luartcr  .,f 
the  slobe.  An  examination  of  all  the  appeals  taken  from  the  jmlj;- 
ments  of  district  courts  in  cases  arising  out  of  the  late  Spanish- 
American  war  shows  that  this  period  of  time  was  adequate  for  tlu' 
ultimate  disposition  of  those  cases  before  the  Supreme  Court  of  the 
United  States.  The  period,  therefore,  was  satisfactory  to  the  Ameri- 
can dclefiation.  Hut  it  might  happen  that  the  case  was  not  scttk.l 
either  in  the  court  of  t^rst  instance  or  in  the  international  court  ol 
appeal  within  the  conventional  [x-riod  jf  two  years.  In  such  a  case 
it  is  provided  that  the  case  may  be  transferred  from  the  national 
court  and  submitted  to  the  International  Court  of  Prize  at  The  Ha^cuc 
'^houl.l  these  provisions  commend  themselves  generally,  cases  will  k' 
.lecidcd  promptly  hy  national  courts,  and  the  ultimate  decisions  of  the 
International  Court,  if  one  there  is  to  be,  will  be  handed  down  hefnr. 
the  suitor  is  broken  in  fortune  and  years. 

The  proposed  Court  is  to  consist  of  fifteen  judges,  of  whom  iiiiu- 
shall  constitute  the  (luorum  necessary  for  the  transaction  of  1)umiics> 
(Art.  14.)  They  are  to  be  chosen  from  among  jurists  of  recogni/nl 
competencv  in  .lucstions  of  international  maritime  law  and  -lionl^l 
possess  the  highest  moral  consideration.  They  are  to  be  nonmiatnl 
for  a  period  of  ix  yars.  and  their  appointment  may  be  renewed.  Of 
tlie  fifteen  judi,  .  eight  countries  p<issess  the  right  to  nominate  ^ach 
a  judge  to  serve  for  the  full  (.eriod  of  six  years.  In  the  alphalKli.;,! 
order  of  the  I'rench  names  these  countries  are  Germany,  the  rnitnl 
States  of  America,  .\ustria-Hungary,  France.  Great  Britain,  Italv, 
Iai)an,  and  Russia.  The  remaining  seven  judges  are  aiipointed  for  a 
"like  period  of  six  vcars,  but  exercise  their  functions  as  judge  within  a 
shorter  period,  the  length  of  active  service  depending  largely  nixm 
the  commercial  and  maritime  importance  of  the  various  nations. 
their  sup))osc.l  interest  in  the  (piestions  likely  to  come  beloic  the 
court,  and  the  frequency  with  which  they  may  appear  as  suilors. 
The  exact  manner  in  which  an<l  the  periods  during  which  all  the  othiT 
judges  shall  be  calle<l  to  exercise  their  functions  appear  from  the 
table  annexed  to  the  convention  and  made  a  part  thereof.  (Art  LV) 
\nv  classification  i^  bound  to  be  more  or  less  arbitrary,  and  its  accept- 
•uice    dem.and-    n. ,    little    sacrifice   on    the   part    of   the    St.ate   which 


REPORT   OK   TIIF.   AMI  Rll  AN    DKI.IC.AriON 


119 


possesses  less  than  the  full  represeiitatii)n.  It  was  felt  that  the  con- 
tinuous presence  in  the  Court  of  judges  representing  the  eight  Slates 
mentioned  would  funn  a  iiitcleus  of  trained  judges  and  that  the 
weight  and  authority  of  these  judges  based  uiwn  training  and  experi- 
ence would  counterbalance  the  diNadvantage  of  the  change-,  intro- 
duced in  the  Court  by  the  successive  participation  of  representatives 
of  different  countries. 

As  the  proposed  Court  is  to  Ik'  international  and  i>  to  he  established 
primarily  to  settle  peaceably  and  t)\  judicial  methods  controversies 
arising  l)etween  State  and  State  involving  the  validity  of  capture,  the 
sovereign  States  whose  interests  are  involved  in  the  controversy  may 
appear  teforc  the  Prize  Court  just  as  s«ch  sovereign  States  in  other 
than  prize  matters  may  and  do  actually  appear  before  an  arbitration 
tribunal.  It  may  thus  be  that  sovereign  States  will  ordinarily  be 
parties  plaintiff  and  defendant. 

It  may,  however,  ha])pen  that  a  State  does  not  wish  to  es|K)use  the 
cause  of  its  citizens,  although  convinced  that  an  injustice  has  been 
comniitled.  In  such  a  case  it  would  seem  to  be  eminently  proper 
that  the  injured  individual  should  himself  appear  before  the  C'ourt 
ami  litigate  the  (|uestion.  The  fourth  article  of  the  convention  in- 
vests an  individual  claimant  with  such  right;  but,  lest  the  exercise  of 
the  right  may  prove  embarrassing  to  the  State,  the  same  article 
makes  this  right  dei>enil  u[)on  the  permissimi  of  the  State  whereof 
the  claimant  is  a  sul>jcct  or  citizen,  and  acknowledges  the  right  of 
such  State  either  to  prevent  his  appearance  or  to  ap])ear  on  behalf  of 
such  subject  or  citizen.  It  is  thus  seen  that  whether  the  State  is  party 
liti'.:.int  or  not.  it  reserves  fullv   the  right  to  control  the  litigation, 

The  jurisdiction  of  the  projjosed  Court  is  deilt  with  in  .Xrticlc  7,  the 
'ranslation  c)f  which  is  as  follows: 

If  the  ([uestion  of  law  to  be  decided  is  provided  for  by  a  conven- 
tion in  force  between  the  belligerent  cajjlor  and  the  I\jwer  which 
is  itself  a  i)arty  to  tlie  controversy  or  whose  citizen  or  suljjcct  is  a 
party  thereto,  the  International  Court  shall  conform  to  the  stipu- 
lation of  the  said  convention. 

In  the  absence  of  such  stipulations,  the  international  court  shall 
apply  the  rules  of  iiUernational  l.iw.  If  generally  recognized 
rules  do  not  exist,  the  court  shall  decide  in  ;icconl.inco  with  gen- 
eral principles  of  justice  .ind  equity. 

The  foregoing  provisions  shall  aj>p!y  with  rcg.ird  to  the  order  of 
admission  of  evidence  as  well  as  to  the  means  which  max-  be  em- 
ployed in  adducing  it. 


120  THE   HA(iUF.   CONFEItKNCE  OF    1907 

If.  m  accordamc  with  Artiilt-  J.  Ni>.  2  c.  the  ap"-al  is  based  on 
llie  violaticn  of  a  li^al  proviMon  enacted  by  the  belljjerent  captor, 
the  Court  •'liall  apply  tins  provision. 

The  C ourt  mav  have  out  of  aicount  statutes  of  limitition  har^n^; 
procedure  acconlitiK  to  the  laws  of  the  belligerent  captor,  in  case 
it  considers  that  the  consequences  thereof  would  I*  contrary  Ui 
justice  and  ecpiity. 

It  can  not  he  denied  that  the  question  of  the  jurisdiction  of  the 
Court  is  not  only  of  Ken"al  interest,  but  of  fundamental  importance 
to  the  contracting  parties.  The  first  clause  of  the  article  calls  atten- 
tion to  conventional  stipulations  which,  if  establishinR  rules  of  law. 
shall  l>e  binding  upon  the  Court  in  controversies  between  parties  to 
the  convention.  It  was  hoix-d  that  the  provisions  of  prize  law  likely 
to  give  rise  to  controversies  would  he  codified  by  the  Conference  .iml 
that,  therefore,  there  would  Ik-  a  conventional  law  prescribed  hy 
the  Conference  for  the  proposed  Court.  A  general  agreement  was 
not,  however,  reached. 

The  jurisdiction  of  the  Court,  as  set  forth  in  Article  7,  was  |.rn- 
posed  by  Great  Britain,  and  accepted  by  the  Conference  as  intirpr. trd 
by  the  learned  and  distinguished  reporter.  Mr.  Louis  Renault,  from 
whose  elalKirate  report  the  following  weighty  passages  are  quoted  a- 
the  best  contemporary  interpretation  of  the  article: 

What  rules  of  law  will  the  new  Prize  Court  apply? 

This  is  a  question  of  the  greatest  importance,  the  delic:iry  .iinl 
gravity  of  which  can  not  be  overUK)ked.     It  liai  ofttii  cla-nici  i 
attention  of  those  who  have  thought  of  the  establishment  f)f  an 
international  jurisdiction  on  the  subject  we  are  considering. 

If  the  laws  of  mar.iime  warfare  were  codified,  it  would  1r'  e  i-\ 
to  say  that  the  International  Prize  Court,  the  same  as  the  tiatumal 
court's,  should  apply  international  law.  It  would  be  a  regular  func- 
tion of  the  international  court  to  revise  the  decisions  of  the  ii.> 
tional  courts  which  had  wrongly  applied  or  interpreted  the  iiui  r 
national  law.  The  international  courts  and  the  national  cciirt- 
would  decide  in  accordance  with  the  same  rules,  which  it  wouW 
be  supposed  ought  merely  to  be  interpreted  more  authoritativdv 
and  impartially  by  the  former  courts  than  by  the  latter.  Hut  tlii^ 
is  far  from  being  the  case.  On  many  points,  and  s(ime(>f  ttum 
very  important  ones,  the  laws  on  maritime  warfare  arc  still  inicir- 
tain,  and  each  nation  formulates  them  according  to  its  kUm'  aii.l 
interests.  In  si)ite  of  the  eflforts  made  at  the  present  Coiifcrnuo 
to  diminish  these  uncertainties,  one  can  not  help  rtaliziiiu  that 
many  will  continue  to  exist.  A  serious  difficulty  at  once  ari-e- 
here. 


RKIf)RT  OP   THK   AMFHICAN    DFLEGATION 


121 


It  Roes  without  ^ayin^  that  where  there  ar?  rul«->  t•^ta^^li  lucl  by 
treaty,  whether  they  arc  general  or  are  at  lea>t  cnnimim  to  the  na- 
tions concernel  in  the  capture  (the  captor  nation  ami  the  nation 
to  which  the  vessel  or  car),'o  seized  lirlonfj"* ),  tlie  International 
Court  will  have  to  conform  to  these  rnlos.  iCven  in  the  al)^encc 
of  a  formal  treaty,  there  may  he  a  recoj^ized  customary  nile 
which  passes  a«  a  tacit  expression  of  the  will  of  the  nations.  But 
what  will  happen  if  the  positive  law,  written  or  ciistotnary,  is 
silent?  There  appears  tp  be  no  doubt  that  the  solution  dictated 
by  the  strict  [)rinciples  of  legal  reasonii  i;  should  (irevail.  Wher- 
ever the  jwsitive  law  has  not  expresscil  itself,  each  bellijjerent  has 
a  right  to  make  his  own  regtilations,  and  it  can  not  he  said  that 
they  are  contrary  to  a  law  which  does  not  exist.  In  this  case, 
how  could  the  decision  of  a  national  prize  court  be  revised  when 
it  has  merely  applied  in  a  rcjiilar  manner  the  law  of  its  country, 
which  law  is  not  contrary  to  any  principle  of  international  law? 
The  conclusion  would  therefore  be  that  in  default  of  an  interna- 
tional rule  firmly  established,  the  International  Court  slial!  apply 
the  law  of  the  captor. 

Of  cour.sc  it  will  be  easy  to  offer  the  objection  that  in  this  man- 
ner there  would  be  a  very  changeable  law,  often  very  arbitrary 
and  even  conflicting,  certain  t)elligerents  abusing  the  latitude  left 
them  by  the  positive  law.  This  would  be  a  reason  for  hastening 
the  codification  of  the  latter  in  order  to  remove  the  deficiencies 
and  ihe  uncertainties  which  are  complained  of  and  which  bring 
about  the  difficult  situation  which  has  just  been  pointed  out. 

However,  after  mature  reflection,  we  believe  that  we  ought  to 
propose  to  you  a  solution,  bold  to  be  sure,  but  calculated  consid- 
erably to  improve  the  practice  of  international  law.  "If  generally 
recognized  rules  do  not  exist,  the  Court  shall  decide  according  to 
the  general  principles  of  justice  and  equity.  '  It  is  thus  called 
upon  to  create  the  law  and  to  take  into  account  other  principles 
than  those  to  which  the  national  prize  court  was  required  to  con- 
form, whose  decision  is  assailed  by  the  International  Court.  We 
are  confident  that  the  judges  chosen  by  the  Powers  will  be  equal 
to  the  task  which  is  thus  imposed  upon  them,  and  that  they  will 
[)erform  it  with  moderation  and  firmness.  They  will  interpret 
the  rules  of  practice  in  accordance  with  justice  without  overthrow- 
ing them.  A  fear  of  their  just  decisions  may  mean  the  exercise 
of  more  wisdom  by  the  belligerents  and  the  national  judges,  may 
lead  them  to  make  a  more  serious  and  conscientious  investigation, 
and  prevent  the  adoption  of  regulations  and  the  rendering  of  de- 
cisions which  are  too  arbitrary.  The  judges  of  the  international 
court  will  not  be  obliged  to  render  two  derisions  contrary  to  each 
other  by  applying  .successively  to  two  neutral  vessels  seized  under 
the  same  conditions  different  regulations  established  bv  the  two 
bcHigp'ents.    To  sum  up.  the  situation  created  for  the  new  prize 


''•i'Y!^' 


122 


THE  HAGUE  CONFERENCE  OF   19C'' 


court  will  greatlv  resemble  the  condition  which  has  long  existed  in 
the  coi-'t^  of  countries  where  the  laws,  chiefly  custoniai^-,  wire 
still  rudimentary.  These  courts  made  the  law  at  the  same  time 
that  they  applied  it,  and  their  decisio-:  ..^I'^tituted  precedeuu. 
which  become  an  important  sourcf  •  t  uk  !:iw.  The  most  es- 
sential thing  is  to  have  judges  wl  i  inspire  (xr'i-.  ;  conhdence. 
If,  in  order  to  have  a  complete  set  '  '  ir,-  riiati onal  v.s,  we  were 
to  wait  until  we  had  judges  to  ap;  'v  -l,  tlu'  even  would  be  a 
pri,^pective  one  which  even  the  youi.feOi,  of  ':,  couid  hardly  ex- 
pect to  see.  A  scientific  society,  such  as  the  Institute  of  Inter- 
national Uw,  was  able,  by  devoting  twelve  years  to  the  work,  K. 
prepare  a  set  of  international  regulations  on  maritime  prize>  iii 
which  the  organization  and  the  procedure  of  the  international 
court  have  only  a  very  limited  scope.  The  community  of  civilize! 
nations  is  more  difficult  to  set  on  foot  than  an  association  of  juris- 
consuhs ;  it  must  be  subject  to  other  considerations  or  even  other 
prejudices,  the  reconcilement  of  which  is  not  so  easy  as  that  of 
legal  opinions.  Let  us  therefore  agree  that  a  court  composed  ot 
eminent  judges  shall  be  entrusted  with  the  task  of  supplying  tiie 
di'ticiencies  of  positive  law  until  the  codification  of  international 
law  regularly  undertaken  by  the  Governments  shall  simplify  their 

t^sk 

The  ideas  which  have  just  been  set  forth  will  be  applicable  with 
regard  to  the  order  of  admission  of  evidence  as  well  as  to  ilu' 
means  which  may  be  employed  in  gathering  it.  In  most  countrKs 
arbitrary  rules  exist  regarding  the  order  of  admission  of  evnkncf. 
To  use  a  technical  expression,  upon  whom  does  the  burdin  ol 
proof  rest?  To  be  rational  one  would  have  to  say  that  it  is  the 
captor's  place  to  prove  the  legality  of  the  seizure  that  is  made. 
This  is  especially  true  in  case  of  a  violation  of  neutrality  charged 
against  a  neutral  vessel.  Such  a  violation  should  not  be  presuniol. 
And  still  the  captured  party  is  frequently  required  to  prove  tlie 
nullity  of  the  capture,  and  consequently  its  ill.gality,  so  th.it  in 
ca-e  of  doubt  it  is  the  captured  party  (the  plaintiff)  who  hi^c-, 
the  suit.  This  is  not  equitable  and  will  not  be  imposed  upon  tlie 
liiternatiimal  Court.  ,       •  ,  , 

What  has  just  been  said  regarding  the  order  of  evidence  a!~n 
applies  to  the  means  of  gathering  it.  regarding  which  more  or  le^^ 
arbitrary  rules  exist.  How  can  the  nationality,  ownership,  and 
the  doniicile  be  proven?  Is  it  only  by  means  of  the  ship's  paper., 
or  also  bv  means  of  documents,  produced  elsewhere?  W  e  beluve 
in  allowing  the  Ourt  full  power  to  decide. 

Finallv.  in  the  ^am,e  spirit  nf  broad  equity,  the  Court  i-^  ant.inr- 
ized  not'  to  take  into  account  limitations  of  procedure  presenlie'l 
bv  the  laws  of  the  belligerent  cajUor.  when  it  deems  that  the  con- 
sequences thereof  would  be  unreasonable.  For  instance,  there 
mav  be  provisions  in  the  law  which  are  too  strict  with  regard  to 


3 

■If 


REPORT  OF  THE   AMERICAN    DELEGATION 


123 


the  period  for  making  appeal  or  whicli  enable  a  relinciuishnietit 
of  the  claim  to  be  too  easily  presumed,  etc. 

There  is  a  case  in  wliich  the  International  Court  necessarily  aj)- 
plies  simply  the  law  of  the  captor,  namely,  the  case  in  which  the 
appeal  is  founded  on  the  fact  that  the  national  court  has  violated 
a  legal  provision  enacted  by  the  belligerent  captor.  This  is  one  of 
the  cases  in  which  a  subject  of  the  enemy  is  allowed  to  appeal. 
(Art.  3,  No.  2  c,  at  end.) 

Article  7,  which  has  thus  been  commented  upon,  is  an  obvious 
proof  of  the  sentiment  of  justice  which  animates  the  authors  of 
the  draft,  as  well  as  of  the  confidence  which  they  repose  in  the 
successful  operation  of  the  institution  to  be  created. 

The  expediency  of  the  establishment  of  the  Prize  Court  must  natu- 
rally be  determined  by  those  entrusted  with  such  matters.  The  ques- 
tion of  the  constitutionality  of  the  projwsed  international  court  of 
prize  as  a  treaty  court  would  seem  to  be  precluded  by  the  decision  of 
the  Supreme  Court  of  the  United  States  in  Re  Ross  ( 140  U.  S.,  453). 
Indeed,  it  would  seem  that  that  may  well  be  done  generally  which  may 
be  done  singly  or  individually  and  that  the  submission  of  prize  cases 
to  an  international  court  of  appeal  definitively  constituted  and  in  ses- 
sion is  a  wiser,  safer,  and  more  commendable  practice  than  to  submit 
questions  of  prize  law  to  a  mixed  commission  which  may,  as  happened 
in  the  past,  decide  contrary  to  the  Supreme  Court  of  the  United  States. 

In  view,  therefore,  of  the  advantages  of  a  permanent  court  to  which 
an  appeal  may  be  taken,  and  in  view  of  the  guaranteed  impartiality 
of  an  international  decision,  composed  as  the  Court  would  be  in  large 
majority  by  neutrals,  and  in  view  also  of  the  determined  policy  of  the 
United  States  to  remain  a  neutral  in  all  international  conflicts,  it  would 
seem  that  we  need  scarcely  fear  the  reversal  of  the  decisions  of  our 
courts  because  such  decisions  presuppose  a  war  to  which  we  are  a 
party.  The  existence  of  the  Court  offers  our  citizens  an  inti—national 
forum  in  which  to  safeguard  their  interests  as  ncutra'  ,:  rs  and 
carriers  in  all  parts  of  the  world.  The  .American  delet,  .i.  there- 
fore, not  only  approved  and  signed  the  convention,  but  proposed  it 
jointly  with  Germany,  C.reat  Britain,  and  France. 


XIII. — COWEXTION   CONCERNING  THE   RIGHTS   AND  DITIF.S  OF   NEUTRAL 
POWERS    IN    CASE   OF    MARITIME    WAR 

This  convention  deals  with  the  important  subject  of  maritime  neu- 
trality and  formulates  the  progress  which  has  been  made  in  that  sub- 


124  THE  HAGUE  CONFERENCE  OF   1907 

ject  in  the  past  haU  century.  It  i^  stated  in  the  preamble  that  the  con- 
vention is  incomplete ;  in  view  of  the  extent  of  the  held  to  be  covered 
and  the  sharply  conflicting  interests  that  are  involved,  a  conipkti- 
tre.  -.ment  of  the  subject  was  hardly  to  be  expected.  The  convention 
therefore  properly  contains  the  suggestion  that,  in  giving  eflfect  to  us 
requirements,  the  rules  of  international  law  shall  be  regarded  as  sup- 
plementing the  provisions  of  the  convention.  Neutrals  are  advisid 
that  any  rules  which  they  may  apply,  or  any  measures  to  which  they 
may  resort  with  a  view  to  the  enforcement  of  their  neutral  rights  ur 
the  fulfilment  of  their  neutral  obligations,  shall  be  uniformly  applied 
to  all  belligerents,  and  shall  not  be  changed  during  the  progress  ot  a 
particular  war. 

Out  of  an  abundance  of  caution  the  enacting  clause  contains  a  pro- 
vision that  the  requirements  of  the  convention  shall  not  be  regarded 
a>  encroaching  upon  the  requirements  of  existing  treaties.     In  other 
words,  an  undertaking  like  the  Black  Sea  treaty,  containing  provi>ions 
in  regard  to  the  passage  of  war-ships  through  the  Dardanelles,  is  not 
modified  or  abrogated  by  the  requirements  of  the  foregoing  convention. 
The  proposition  advanced  by  England  represented  the  strict  vrws 
of  neutral  rights  and  duties  which  are  held  by   States  maintaining 
powerful  naval  establishments,  supplemented  by  a  widely  distributed 
system  of  coaling  stations  and  iwrts  of  call,  in  which  their  merchant 
vessels  could  f^nd  convenient  refuge  at  the  outbreak  of  war  and  which 
enable  them  to  carry  on  operations  at  sea  quite  indejKfndently  of  a 
resort  to  neutral  ports  for  the  procurement  of  coal  or  other  supplies 
or  for  purposes  of  repair.    As  the  policy  of  the  United  States  (.ov- 
ernment  has  generally  been  one  of   strict  neutrality,  the  delegation 
found  itself  in  sympathy  with  this  policy  in  many,  if  not  most,  of  n- 
essential  details.     France  for  many  years  past  has  taken  a  somewhat 
different  view  cf  its  neutral  obligations,  and  has  practiced  a  liberal. 
rather  than  a  strict,  neutrality.     The  views  of  France  in  that  rt-ard 
have  received  some  support   from  the  Russian  delegation  and  were 
favored  to  some  extent  by  Germany  and  .Austria. 

It  was  constantly  borne  in  mind  by  the  delegation,  in  all  (Uhl.er,>- 
tions  in  committee,  that  the  United  States  is.  and  always  has  been,  a 
permanentlv  neutral  Power,  and  has  always  endeavored  to  secure  the 
greatest  enlargement  of  neutral  privileges  and  immunities.  Not  only 
are  its  interests  permanently  neutral,  but  it  is  so  fortunately  situated, 
in  respect  to  its  military  and  naval  establishments,  as  to  he  aide  to 


REPORT  OF  THE    AMERICAN    DELEGATION 


125 


enforce  respect  for  such  neutral  rights  and  obhgations  as  flow  frotu  its 
essential  rights  of  sovereignty  and  independence. 

With  a  -"iew,  therefore,  to  secure  to  neutral  States  the  greatest  possi- 
ble exemption  from  the  burdens  and  liardships  of  war,  the  delegation 
of  the  United  States  gave  constant  support  to  the  view  that  stipula- 
tions having  for  that  purpose  the  definition  of  the  rights  and  duties 
of  neutrals  should  as  a  rule,  take  the  form  of  restrictions  and  prohi- 
bitions upon  the  belligerents,  and  should  not,  save  in  case  of  necessity, 
charge  neutrals  with  the  performance  of  specific  duties.  This  rule  was 
only  departed  from  by  the  delegation  in  cases  where  weak  neutral 
Powers  demanded,  and  need,  the  support  of  treaty  stipulations  in 
furtherance  of  their  neutral  duties.  It  was  also  borne  in  mind  that  a 
State  resorting  to  certain  acts  with  a  view  to  prevent  violations  of  its 
neutrality  derives  power  to  act  from  the  fact  of  its  sovereignty,  rather 
than  from  the  stipulations  of  an  international  convention. 

The  first  two  articles  and  the  first  paragraph  of  Article  3  of  the  con- 
vention rep'^esent  in  substance  the  existing  rule  of  international  law 
on  the  subjects  of  which  they  treat.  The  second  paragraph  of  Article 
3  shifts  the  obligation  '"om  the  neutral  to  the  captor,  who  is  bound 
upon  request  of  the  neucral  to  return  the  prize  captured  improperly 
in  utral  waters.  The  neutral,  however,  is  not  obligated  to  make  the 
de.  d,  and  it  may  thus  happen  that  a  powerful  captor  violates  neutral 
wa'.ers  without  protest  from  the  neutral.  It  may  well  be  that  the  spirit 
of  the  article  imposes  the  duty  upon  the  neutral ;  the  latter  does  not. 
The  article  seems,  therefore,  to  be  objectionable. 

Article  5  embodies  the  second  of  the  rules  adopted  in  the  treaty  of 
Washington  for  the  guidance  of  the  Geneva  tribunal,  to  which  is  added 
a  prohibition  respecting  the  establishment  of  wireless-telegraph  sta- 
tions on  neutral  territory.  Article  6  is  new  and  forbids  a  neutral  State, 
as  such,  to  transfer  vessels  or  munitions  of  war  to  a  belligerent.  Arti- 
cle 7  embodies  the  existing  rule  of  international  law  which  charges  a 
State  with  no  duty  of  forbidding  the  exportation  from  or  transit  of 
war  material  through  its  territon,'  in  time  of  war.  Article  8  embodies 
the  first  of  the  rules  of  the  Treaty  of  Washington  for  the  guidance  of 
the  Geneva  tribunal. 

Article  9  is  a  correct  statement  of  the  existing  rule  of  impartiality 
in  the  dealings  of  neutral  States  with  belligerents.  The  right  to  for- 
bid access  to  its  ports  to  a  vessel  whi^h  has  failed  or  neglected  to  con- 
form to  the  orders  of  the  neutral  State,  or  has  violated  its  neutrality, 
is  generally  conceded. 


126 


THE  UAGL'E  c(iM'i:rk\ce  of  1907 


Article  10  is  new  in  conventional  form,  and  authorizes  the  passage 
of  an  armed  vessel  or  prize  through  territorial  waters.  In  the  absence 
of  restrictive  language  this  would  seem  to  include  straits  which  connect 
bodies  oi"  water  which  are  open  to  piibbc  navi^ition.  It  also  recog- 
nizes the  fact  that  such  mere  passage  through  any  territorial  waters, 
provided  no  acts  of  hostility  are  committed,  does  not  compromise  the 
neutrality  of  the  State  to  which  they  belong.  The  requirement  of  the 
enacting  clause,  that  the  provisions  of  existing  treaties  are  not  abro- 
gated or  modified  by  the  convention,  applies  to  this  article.  It  may 
be  noted,  in  passing,  that  the  rule  established  in  Article  10  is  substan- 
tially the  same,  in  so  far  as  free  passage  is  concerned,  as  the  rules  pre- 
scribed bv  treaty  in  connection  with  the  passage  of  the  Suez  and  Pan- 
ama canals  by  public  armed  vessels  in  time  of  war. 

The  stipulations  in  respect  to  the  use  of  licensed  pilots  (Art.  11). 
the  twenty-four  hours  rale  (Articles  12  and  13),  and  the  length  of 
sojourn  to  repair  damages  stand  in  need  of  no  comment. 

Article  15  is  new  and  is  intended  to  prevent  a  neutral  port  from 
being  made  either  a  base  of  hostile  operations  or  a  place  of  assembly 
for  the  fleets  of  a  belligerent.  To  that  end  a  neutral  may  restrict,  at 
discretion,  the  number  of  belligerent  ships,  including  auxiliary  vessels, 
that  may  enjoy  its  hospitality  at  any  one  time.  In  default  of  such  rule, 
the  number  of  ships  of  war  or  auxiliary  vessels  that  may  be  in  a  par- 
ticular neutral  (Hjrt  at  the  same  time  is  fixed  at  three. 

Article  19  is  an  extremely  important  one.    It  provides  that : 

Art.  19.  Belligerent  vessels  of  war  can  not  revictual  in  neutral 
ports  and  roads  except  to  complete  their  normal  supplies  in  time 

of  peace. 

Neither  can  these  vessels  take  on  board  fuel  except  to  readi  the 
nearest  port  of  their  own  country.  They  may,  however,  take  on 
tiie  fuel  necessary  to  fill  their  bunkers,  properly  so  called,  when 
they  are  in  the  waters  of  neutral  countries  which  have  adopted  'his 
method  of  determining  the  amount  of  fuel  to  be  furnished. 

If,  according  to  the  rules  of  the  neutral  Power,  vessels  can  mily 
receive  coal  twenty-four  hours  after  their  arrival,  the  lawful  dur- 
ation of  their  sojourn  shall  be  prolonged  twenty-four  hours. 

Art.  20.  Belligerent  vessels  of  war  which  have  taken  on  board 
coal  in  the  port  of  a  neutral  Power,  can  not  renew  their  sujipiy 
within  three  months  in  a  port  of  the  same  Power. 

The  Great  Powers  of  the  world  are  susceptible  of  being  grouped 
into  two  classes  in  the  matter  of  neutral  policy.    England,  having  great 


REPORT  OF  THE   AMERICAN    DELEGATION 


127 


naval  power,  supplemented  by  an  extensive  system  of  coaling  stations 
and  commercial  ports,  has  always  favored  and  practiced  a  policy  of 
strict  neutrality.  France,  less  powerful  at  sea,  having  few  naval  sta- 
tions and  with  few  distant  colonial  possessions,  has  been  more  liberal 
in  the  enforcemtnt  of  its  neutial  obligations,  and  has  allowed  con- 
siderable aid  to  be  extended  to  belligerent  vessels  in  its  ports.  As  En- 
gland has  treated  both  belligerents  with  impartial  strictness,  France 
liiis  treated  them  with  impartial  liberality.  With  this  view  Russia 
and,  to  some  extent,  (Jermany  and  Austria  are  in  sympathy.  As 
has  been  seen,  the  policy  of  the  United  States  has  been  in  the  main 
similar  to  that  of  Cjreat  Britain. 

In  the  matter  of  coal  the  English  delegation  proposed  that  the 
amount  of  coal  which  a  belligerent  vessel  might  obtain  in  a  neutral 
port  should  be  restricted  to  quarter  bunkers.  The  substantial  opera- 
tion of  this  rule  would  be  that  any  public  armed  vessel  that  entered  a 
neutral  port  short  of  coal  would  have  to  be  interned  until  the  close  of 
the  war,  as  it  would  be  impossible,  in  a  majority  of  cases,  to  reach  a 
home  port  with  so  meager  an  allowance  of  coal  as  quarter-bunker 
capacity.  This  proposition  was  rejected,  as  were  a  number  of  sugges- 
tions based  upon  bunker  capacity,  condition  of  bottoms,  etc..  which 
were  so  compHcated  as  to  be  practically  impossible  in  their  application. 

The  result  was  to  reach  the  compromise  which  is  stated  in  Article  19, 
as  to  which  it  may  be  said  that  the  liberal  States  have  yielded  rather 
more  than  those  whose  policy  is  one  of  strict  neutrality.  The  article 
represents,  it  would  seem,  the  most  satisfactory  conclusion  possible 
fur  the  Conference  to  reach. 

Articles  21  to  25  relate  to  the  admission  of  prizes  to  neutral  ports. 
Articles  21  and  22  seem  to  be  unobjectional.  Article  23  authorizes 
the  neutral  to  permit  prizes  to  enter  its  ports  and  to  remain  there  pend- 
ing action  on  their  cases  by  the  proper  prize  couns.  This  is  objection- 
able for  the  reason  that  it  involves  a  neutral  in  participation  in  the 
war  to  the  extent  of  giving  asylum  to  a  prize  which  the  belligerent 
mny  not  be  able  to  conduct  to  a  home  port.  This  article  represents 
the  revival  of  an  ancient  abuse  and  should  not  be  approved.  In  this 
connection  it  is  proper  to  note  that  a  proposition  absolutely  forbidding 
the  destruction  of  a  neutral  prize,  which  was  vigorously  supported  by 
England  and  the  United  States,  failed  of  adoption.  Had  the  propo- 
sition been  adopted,  there  would  have  been  some  reason  for  author- 
izing such  an  a  ;ylum  to  be  afforded  in  the  case  ot  neutral  prizes. 


128 


THE  HAGUE   CONFEKENCE  OF    1907 


Article  24  covers  the  case  of  the  internment  of  a  public  armed  vessel 
in  a  neutral  port,  and  vests  sufficient  authority  in  the  neutral  to  ensure 
respect  for  its  sovereign  rights  and  obligations. 

Article  25  is  a  restatement  of  the  third  of  the  rules  of  the  treaty  of 
Washington,  and  as  such  is  worthy  of  adoption. 

Article  26  was  inserted  in  the  interest  of  the  weaker  naval  Powers, 
and  contains  a  stipulation  that  an  e.-^rcise  of  its  right  by  a  neutral 
State,  involving  possibly  a  resort  to  force,  shall  not  be  regarded  as  an 
unfriendly  act  by  either  belligerent. 

Article  27  contemplates  a  mutual  exchange  of  laws,  ordinances,  rcgu 
lations,  and  other  authoritative  utterances  of  the  respective  Govern- 
ments in  respect  to  the  conduct  of  belligerent  vessels  of  war  in  their 
ports  and  waters.    These  are  to  be  transmitted  to  the  Dutch  Govern- 
ment and  by  that  Government  to  the  other  contracting  parties. 

This  convention  was  made  the  subject  of  reservation  at  the  plenary 
session  of  the  Conference  and  was  not  signed  by  the  American  dele- 
gation. This  was  done  in  order  to  enable  the  Department  to  deter- 
mine whether,  all  things  considered,  it  was  proper  or  expedient  to 
subject  the  performance  of  its  neutral  rights  and  duties  to  some  nicas 
ures  of  conventional  regulation. 

By  way  of  recapitulation:  The  second  paragraph  of  Article  3  and 
Article  23  should  not  be  approved.  As  to  Article  19,  covering  the  ques- 
tion of  coal  supply,  it  can  only  be  said  that  it  represents  a  compromise 
of  very  divergent  interests,  and  that  practice  under  it  in  the  future 
will  be  substantially  the  same  as  in  the  past. 

The  naval  delegate  of  the  United  States  expressed  the  following 
opinion : 

The  lack  of  conventional  agreements  regulating  the  e\  t  .se 
of  neutrality  has  more  than  once  threatened  to  involve  the  whole 
world  in  war  and  perhaps  the  rules  adopted  by  this  Conference, 
if  they  are  imanimously  approved  by  the  maritime  Powers,  ini^l't 
be  accepted  as  possibly  promoting  peace,  since  practically  they 
certify  the  right  of  neutrals  to  do  as  they  please  within  very  wide 
limits  without  fear  of  reclamation,  but  there  is  no  question  th.it 
they  are  not  in  accord  either  with  the  practice  of  the  United  States 
or  with  its  strategic  situation. 

A  careful  examination  of  the  convention  as  a  whole  and  in  all  its 
parts  leads  to  the  conclusion  that  its  ratification  is  in  the  interest  of 


REPORT  OF   THE   AMERICAN'    DELEGATION 


129 


neutral  Powers,  but  that  in  such  ratification  it  is  suggested  that  the 
second  paragraph  of  Article  3  and  Article  23  be  rejected. 

XrV. — DECLARATION  FORBIDDING  THE  LAUNCHING  OF  PROJECTILES  FROM 

BALLOONS 

This  declaration  consists  of  but  a  single  article,  the  essential  por- 
tion of  which  follows : 

The  contracting  parties  agree  to  prohibit,  for  a  period  extending 
to  the  close  of  the  Third  Peace  Conference,  the  discharge  of  pro- 
jectiles and  explosives  from  balloons  or  by  other  new  methods  of 
a  similar  nature. 

The  declaration  was  a  reenactment  of  the  analogous  provision  of 
the  First  Conference,  which,  however,  being  for  a  i)eriod  of  five  years, 
had  elapsed.  In  order  to  prevent  the  lapse  of  the  present  declaration, 
it  was  provided  that  it  should  remain  in  effect  until  the  end  of  the 
Third  Conference. 


DECLARATION    CONCERNING   OBLIGATORY    ABUITRATION 

I  The  Conference  was  unable  to  agree  upon  a  general  treaty  of  arbi- 

tration, although  a  large  majority  expressed  itself  in  favor  of  a  gen- 
eral treaty  of  arbitration,  reserving  therefrom  questions  concerning 
the  independence,  vital  interests,  and  honor,  and  setting  forth  a  list 
J  of  concrete  subjects  in  which  the  contracting  Powers  were  willing 

I  to  renounce  the  honor  clause.     The  principle  of  obligatory  arbitra- 

tion was  unanimously  admitted  in  the  abstract,  but  when  it  was  pro- 
I  posed  to  mcorporate  this  principle  in  a  concrete  case  or  series  of 

1  cases  insurmountable  difficulties  arose.     Some  Powers  seemed  will- 

ing to  conclude  arbitration  treaties  with  certain  other  carefully  selected 
Powers,  but  were  unwilling  to  bind  themselves  with  the  remaining 
nations  of  the  world.  Other  nations  were  willing  to  renounce  the 
honor  clause  in  some  subjects  but  not  in  others.  It  seemed  to  the 
friends  of  arbitration  feasible  to  do  generally  in  a  single  instrument 
what  they  had  agreed  to  do  in  separate  treaties  with  various  countries. 
The  majority  felt  that  it  was  desirable  to  conclude  at  The  Hague 
a  general  arbitration  treaty  binding  those  who  were  willing  to  be 
hound,  without  seeking,  directly  or  indirectly,  to  coerce  the 
minority,    which    was    unwilling    to    bind     itself.       The    minority, 


130 


THE   UACLE  CONFERENCE  OF   1907 


however,  refused  to  permit  the  majority  to  conclude  such  a  treaty, 
invoking  *he  principle  of  unanimity  or  substantial  unanimity  for  all 
conventio  s  concluded  at  The  Hague.  In  the  interest  of  concilia- 
tion the  majority  yielded,  although  it  did  not  share  the  point  of  view 
of  the  minority.  The  minority  on  its  part  recognized  unequivocally 
and  nnrt'scrvcilly  the  princii)le  of  obligatory  arbitration,  and  the 
following  declaration  was  unanimou.sly  accq)ted  and  proclaimed  by 
the  Conference : 

Tile  Conference,  conforming  to  the  spirit  of  good  understand- 
ing and  reciprocal  concessions  which  is  the  very  spirit  of  it-  de- 
liberations, has  drawn  up  the  following  declaration,  which,  while 
reserving  to  each  one  of  the  Powers  represented  the  benefit  of 
its  votes,  permits  them  all  to  affirm  the  principles  which  they 
consider  to  have  been  unanimously  accepted. 

It  is  unanimous : 

1.  In  accepting  the  principle  for  obligatory  arbitration. 

2.  In  dec'aring  that  certain  differences,  and  notably  those  re- 
lating to  the  inteniretation  and  application  of  international  con- 
ventional stipulations,  are  susceptible  of  being  submitted  to  o'>- 
ligatory  arbitration  without  any  restrictions. 

The  friends  of  arbitration  were  bitterly  disappointed  and  the 
American  delegation  abstaine<l  from  voting  on  the  declaration;  fir't, 
because  it  seemed  to  be  an  inadmissible  retreat  from  the  advancn! 
position  secured  by  an  affirmative  vote  of  four  to  one  in  favor  of  the 
arbitration  convention,  and,  second,  lest  an  affirmative  vote  Ik;  con- 
strued to  indicate  both  an  approval  of  the  arguments  or  methods  of 
the  minority  as  well  as  of  the  withdrawal  of  the  proposed  treaty. 
!t  may  be  admitted  that  the  establishn'  -it  of  the  principle  of  ob- 
ligatory arbitration  is  an  advance.  It  is  not,  however,  the  great  ad- 
vance so  earnestly  desired ;  for  a  concrete  treaty  embodying  the  prin- 
ciple of  obligatory  arbitration  would  have  been  infinitely  more  v.ilii- 
able  than  the  declaration  of  obligatory  arbitration,  however  solemnly 
made. 

RESOHTION    CONCERNING  THE   LIMITATION  OF   MILITARY    CHARGES 

It  is  familiar  knowledge  that  the  First  Peace  Conference  wn^  callcl 
primal ily  to  "secure  a  possible  reduction  of  the  excessive  arm.imonts 
which  weigh  upon  all  nations,"  and  in  the  program  contained  in 
the  second  Russian  ci-cular  (January  11.  1899)  one  of  the  purposes 


RKIf>RT  OF   THE   AMERICAN    DELEGATION 


131 


was  stated  to  l)e  "to  reach  an  understanding  nut  to  increase  for  a 
fixed  period  the  present  etlective  of  the  arnicd  military  and  naval 
forces,  and  at  the  same  time  not  to  increase  the  hti(l),'i,t>  |iirt:.:!iinj,' 
thereto,  and  a  preliminary  examination  of  the  means  by  which  a 
reduction  mi^ht  even  Ix'  effected  in  the  future  in  the  forces  and 
budgets  above  mentioned."  The  First  Conference  failed  to  agree 
upon  a  limitation  or  a  restriction,  but  adopted  unanimously  the  fol- 
lowing resolution : 

The  Conference  is  of  opinion  that  the  restriction  of  militarv 
charges,  which  are  at  present  a  heavy  burden  on  the  world,  is 
extremely  desirable  for  the  increase  of  the  material  and  nmral 
welfare  of  mankind. 


The  Second  Conference  was  equally  unprepared  to  limit  arma- 
ments, to  place  a  restriction  upon  military  or  naval  forces,  or  to  bind 
the  nations  not  to  increase  the  budgets  pertaining  thereto.  It  will  be 
remembered  that  the  United  States  reserved  the  right  to  bring  the 
question  to  discussion,  aUho-igh  as  such  it  did  not  figure  on  the  pro- 
gram. Pursuant  to  this  reservation  and  instructions  from  the 
Secretary  of  State  the  American  delegation  insisted  that  the  subject 
be  discussed  and  in  and  out  of  Conference  lent  it  support.  By  gen- 
eral agreement  a  resolution  was  introduced,  supported  in  an  address 
i)y  the  first  British  delegate  and  in  a  letter  written  by  the  first  .Anuri- 
caii  delegate  on  behalf  of  the  delegation.  The  following  resolution 
was  thereupon  unanimously  adopted: 


The  Second  Peace  Conference  confirms  the  resolution  adopted 
by  the  Conference  of  1899  in  regard  to  the  limitation  of  military 
burdens ;  and  in  view  of  the  fact  that  military  burden'^  have  cnn- 
siderably  increased  in  nearly  all  countries  since  the  said  \ear.  the 
Conference  declares  that  it  is  highly  desirable  to  see  Governments 
take  up  again  the  serious  study  of  that  subject. 

THE    RECOMMENDATIONS    OF    THE    CONFERENCE 

In  addition  to  the  conventions,  declarations,  and  resolution,  the 
Conference  emitted  five  desires  or  vccux,  the  first  of  which  '  in  the 
nature  of  a  resolution.    Of  each  of  these  in  turn — 


The  Conference  recommends  to  the  signatory  Powers  the  adop- 
tion of  the  project  hereunto  annexed,  of  a  Convention   for  the 


132  THE  HA«UK   CONKtJtENCE  OK    l'>07 

establishment  ui  a  Court  of  Arbitral  Justice  and  its  putting  in  ef- 
fect as  soon  as  an  accord  shall  In-  reached  upon  the  choice  of 
the  judges  and  the  constitution  of  the  Court. 

An  analysis  of  this  paragraph  shows  that  the  establishment  of  the 
Court  is  not  the  expression  of  a  mere  wish  or  <lesire  on  the  part  of  the 
Conference,  but  that  it  is  a  recommendation  to  the  Powers  to  under- 
take the  establishment  .  the  court.  In  the  next  place,  the  project 
of  convention  annexed  to  the  recommendation  is  not  to  be  submitted 
as  a  plan  or  as  a  model,  but  for  adoption  as  the  organic  act  of  the 
Court.  .\;;ain,  tlie convention  annexed  and  made  a  part  of  tho  recom- 
mendation goes  forth  not  only  with  the  approval  of  the  Conference, 
but  as  a  solemn  act  adopted  by  it.  And,  finally,  accepting  the  con- 
vention as  the  organic  act,  the  Conference  recommends  that  the  Court 
be  definitely  and  permanently  established  by  the  Powers  as  soon  cis 
they  shall  have  agreed  upon  a  method  of  appointing  the  judges,  wlio, 
when  appointed,  thus  constitute  the  Court.  It  will  be  noted  that  the 
number  of  Powers  necessarj'  to  establish  the  Court  is  not  stated,  nor  i^ 
the  number  of  judges  determined.  It  follows,  therefore,  that  the 
Powers  wishing  to  establish  the  Court  are  free  to  adopt  the  project  of 
convention,  agree  upon  the  method  of  choosing  the  judges,  and  estab- 
lish the  Court  at  The  Hague  for  the  trial  of  cases  submitted  l)y  the 
contracting  Powers. 

The  establishment  of  the  Court  of  Arbitral  Justice  would  not  inter- 
fere with  the  Court  of  Arbitration  in.stituted  by  the  Conference  of 
1899,  and  continued  by  the  Conference  of  1907.  for  this  latter  i-  .i 
temporary  tribunal,  erected  for  a  particular  purpose,  to  decide  a« 
arbiters  a  controversy  submitted.  The  Court  of  .\rbitral  Justice,  on 
the  contrary,  is  meant  to  he  a  permanent  court,  composed  of  ju(l.t,'l■^ 
acting  under  a  sense  of  judicial  responsibility,  representing  tht 
various  legal  systems  of  the  world,  and  capable  of  assuring  the  con- 
tinuity of  arbitral  jurisprudence.  (Art.  \.)  The  contracting  Powers 
are  free  to  appoint  either  a  large  or  a  small  number  of  judges ;  hut 
it  is  provided  in  Article  3  that  the  judges  so  appointed  shall  \wh\ 
office  for  a  period  of  twelve  years  and  that  they  shall  be  chosen  fr.  .ni 
among  persons  enjoying  the  highest  moral  consideration  who  meet 
the  requirements  for  admission  in  their  respective  countries  to  the 
high  magistracy  or  who  shall  be  jurists  of  recognized  oomi)etonry 
in  matters  of  international  law.     CArt.  2.) 

From  these  provisions  it  is  evident  that  the  proposed  institution 


REI-ORT  OF   THE  AME«K  AN    DELEGATION 


133 


is  to  be  nn  merely  in  name  but  in  fact  a  court  of  justice;  that  it  is 
to  be  permanent  in  the  sense  that  it  does  not  need  to  he  constituted 
for  any  and  every  case  submitted  to  it.  Iv  is  obvious  that  such  a 
court,  acting  under  a  sense  of  judicial  responsibility,  would  decide, 
as  a  court,  according  to  international  law  and  equity,  a  question 
submitted  to  it.  and  that  the  idea  of  compromise  hitherto  so  insepa- 
rable from  arbitration,  would  be  a  stranger  to  this  institution  The 
Court  is  said  to  be  permanent  in  the  sense  that  it  holds,  as  courts  do, 
certain  specified  terms  for  the  trial  of  cases.  For  example,  Article 
14  says: 

The  Court  assembles  in  session  once  a  year.  The  session  begins 
on  the  third  Wednesday  of  June  and  last-  until  the  calendar  shall 
have  been  exhausted. 

The  Court  does  not  -i^scmble  in  vcssion  if  the  meeting  is  rleeiiied 
unnecessary  by  the  delegation.  If.  however,  a  Power  i>  a  jiarty  to  a 
case  actually  pending  before  the  Court,  the  prelimin.iry  proceed- 
ings of  which  arc  completed  or  near  completion,  that  Power  has 
the  right  to  demand  that  the  session  take  place. 

The  delegation  may,  in  case  of  necessity,  call  an  cxtraonliiiary 
session  of  the  Conrt. 


It  was  deemed  inexpedient  to  have  an  empty  court  at  The  Hague, 
and  it  was  felt  that  without  a  judicial  committee  capable  of  trans- 
acting the  ordinary  business  that  might  be  submitted,  inmianency  in 
the  true  sense  of  the  word  would  be  lacking,  therefore  it  is  provided 
by  Article  6  of  the  project   that — 

The  Court  designates,  every  year,  three  judges  who  constitute 
a  special  delegation  and  three  others  who  are  to  take  their  place- 
in  case  of  disability.  They  may  be  reelected.  The  vote  is  cast 
by  blanket  ballot.  Those  who  obtain  the  larger  munbcr  of  votes 
are  considered  to  be  elected.  The  delegation  elects  its  own  presi- 
dent, who,  failing  a  majority,  is  drawn  by  lot. 

A  member  of  the  delegation  is  brrred  from  the  exercise  ()f  his 
functions  when  the  Power  by  which  he  was  apiwinted.  and  under 
whose  jurisdiction  he  i<.  is  one  of  the  parties  to  the  case. 

The  members  of  the  delegation  bring  to  a  conclnsiun  the  ca-es 
that  may  have  been  referred  to  therein,  even  though  their  temi 
of  office  should  have  expired. 

Taking  the  two  articles  together,  it  is  apparent  that  the  Court  as 
Mich  is  intended  to  be  permanently  in  session  at  The  Hague;  that 
the  judicial   committee   will   attend    to   the   sma'ler   casts   submitted. 


I 


l.U 


tin:  n\(,ii;  uinh.mkm  i:  nv  I'H)? 


ami  that  tlic  full  Court  will  nii'i't  in  ordinary  or  extraordinary  .sci'^um 
once  a  year  or  whenever  the  business  before  it  woulil  justify  ii^ 
as->embbn>j.  The  judges  are  I'ltendeil  to  ijt  jK'rnianent  court  officials 
and  as  such  to  receive  stated  salaries  whether  they  are  actively  en- 
gaged at  The  Hague  in  the  tri.d  of  i  ies  or  not  The  compensation 
i>  small  (6,()00  florin^  I,  but  the  honor  i^  great.  If,  however,  a  judge 
sits  as  a  trial  jutige  at  The  Hague,  his  expenses  to  and  I'roni  Tin 
Hague  are  pai<i  according  to  the  rate  allowed  in  the  hoim-  inunlry 
for  the  traveling  expense-,  of  a  ju<lge  in  -.ervice,  .nid  in  addition  the 
judge  is  to  receive  the  further  sum  ^f  IIX)  t1orin>  a  day  during  hi-, 
otilicial  service  in  the  examination  or  trial  of  cases. 

The  first  article  speaks  of  a  court  free  and  eas\  of  access.  It  is 
easy  of  access  because  it  is  |)ennanent  and  has  stated  terms  It  i^ 
free  iKcause  no  fees  are  i)aid  for  entrance,  and  it  is  likewise  free  m 
this  'cnse:  That  thi-  sal;ir;es  of  llie  jiiil^'e-  ari-  not  jiaid  liy  the  lilig.it 
ing  parties,  but  pro(M)rtionately  by  the  contracting  Powers.  The 
jurisdiction  of  the  Court  is  very  wide;  for  example,  "the  (dnrt  ni 
Arbitral  Justice  is  com])etent  to  decide  all  cases  which  are  siibmittrd 
to  it  by  virtue  of  a  general  stipulation  of  arbitration  or  by  a  spici.il 
agreement"  (\n.  17)  ;  that  is  to  say.  if  there  be  a  general  treaty  ■>{ 
arbitration  designating  the  Court  of  .\rbitral  Justice,  the  Court  i- 
competent,  if  the  cause  of  action  be  presented,  to  assume  juri-dictii'u 
and  to  decide  the  ci-e  It  may  tie  that  parties  to  a  coi.lroversy  ni.iy 
submit  the  finding  of  ,i  commi>sii)n  of  inijuiry  to  the  ("oiirt  in  r)nl- i 
to  have  tlie  legal  i  c-poii-i'iility  e>tablisheil  in  an  appropiiati'  c.\-e,  '<r 
it  may  he  that  |)artif>  !•  •  an  arbitration  may  wish  to  have  the  r,i  ,• 
examined  when  on  .•inp(  il  or  tic  novo  by  the  Court  of  .Arbitral  Ju>tue 
In  surli  ;i  c.'isc.  lis  \irTr,-  cj-  the  -t)eci;i!  agreement  of  the  jiarties  litiy.iiit. 
the  Court  i-  inve-ted     ,it'i  luri-  iiction. 

It  wa-  nut  ihoiit;!'!   .idvi-able  to  clothe  the  judicial  coniniitti'c  uirl, 
the   ■■■"isdiction  of  tt 
tiiti'  II-      Tlv   ■ulicia: 
ire.ibli    bml'.     .irvl    ;t- 
For  examp'''.  Artie'- 


t'u:    Tourt.  Wst  there  be  two  contpeting  iii-ti- 
■or^-mitt'o  i-      oucver,  expected  to  be  a  '-er\ 
—  -1:  -loi!      -    commensurate   with    its   dignity 

V   'rmvines 


Tb'     lelegar'i-.;       Ar:.  -   competent  — 

(■;r    .-'iitrrninr  ; -t--    --iming  nil  jer  the  forci^i  liii  ;  .irticii 

--,,.  pT-t!.  -   32Ti"e  uTf-rr  -!»«n— -din^T  ''le  aptilicatioTi  I't   ^itnini:!'' 

(ifrermniT-'  -   ~itie  I\'.  ('hapter  I\'.  of  tb''  Coincn 


tio-    of   •u\-    2"    ]««' 

T  ..  III-','-tn^    111     -'•!';;-v 


virt-.K-  i)f  rtni\  in  conformity  to  Till 


RKP<mr   OK   1IIK    AMKRtc  A\    1)1.1.1  liATII)> 


135 


III  of  the  (  onvcnti.,,,  of  Julv  .">.  IH'O.  „,  .„  far  as  i\w  .IcIi^Kation 
may  have  U-tu  chirked  with  this  duty  l>y  the  hli«atits  a.tiiiL'  iii 
comnioii  acconl.  With  tlic  asset  uf  the  parties  an.l  m  den.jja- 
tion  of  Article  /.  section  1,  nienihcrs  of  the  (lele^;ation  who  took 
part  in  the  in(|iiiry  may  sit  as  jiid^es  if  tlie  dispute  •nnie,  for 
arhitration   before   either   the   (  oiirt   or  tlie  <lele>,'ation   itselt. 

The  judicial  coniniittee,  therefore,  is  conipeteni  to  sit  as  the  (  ourt 
of  siimiiiary  proceeding  in  cases  where  parties  liti^jaiit  a^ree  to  make 
Use  of  the  sumniary  proceediliK  of  the  revised  convention.  It  is  like- 
wise comiK'tent  to  sit  as  a  ccmimission  of  iM(|uii^' ;  and  a,  the  com- 
mission of  inijuiry  find,  facts,  there  seems  to  he  no  reason  why  tiie 
niemtjers  of  the  judicial  committee  may  not  sit  as  jud^'c,  if  tlie  liti^,^•l- 
tion  is  submitted  to  the  full  fourt  or  to  the  dele;;atioii. 

Article  19  invests  the  judicial  committee  with  the  power  to  frame 
the  special  aKrccmeiit  that  is  to  say,  the  compromis  provided  for  in 
Article  52  of  the  Convention  for  the  i)eaceful  a.ljustment  of  iiiiorna- 
tional  ilifTerences,  already  mentioned— unless  there  be  an  a),'rcciiu-nt 
(ir  slipiilatioii  to  the  coiitr.iry. 

The  procedure  of  the  Court  has  not  been  ne),dccted,  but  tiiids  an 
.ipfiropriate  place  in  the  project  of  convention. 

The  establishment  of  the  permanent  court  was  proposed  by  the 
.\merican  delegation,  was  accepted  in  principle  and  loyally  siip- 
I'":t<il  by  the  delet^ati.MK  of  ( .cniiaiiy  an<l  ( ireat  lirit.iin,  and  tlie 
proj.-.t  actually  framed  and  reourmended  by  the  Coiiterence  i>  the 
!  .int  work  of  the  American,  Cerm.-.n,  and  Rritish  delegations.  It 
^ii"iiM  lie  said,  however,  that  tlie  project  could  not  have  been  adopted 
witliout  the  loyal  and  unstiiiteil  support  of  France. 

From  this  brief  e.xfxisition  it  is  evident  that  the  foundations  of  ,i 
permanent  court  have  been  broadly  and  tirmly  laid:  tli.it  t!ie  or-an- 
lAitinn.  ji;ri>,iictiun.  an.l  i)n>ccdure  li.ive  been  .Iraftcd  and  reaim- 
mended  in  the  form  of  a  code  which  the  Powers  or  any  inimlKT  of 
tlii-ni  ma\  accept  and.  hv  .i-reein-  np,.n  the  apiK.intinciii  .,f  |iid-c-. 
'•all  into  bemj,'  a  court  a!  .nice  perni.ineMt  and  intern:itional.  .\  little 
"me,  a  little  patience,  and  the  great  work  is  accomplished. 

The  nature  and  purpose  of  the  second  and  third  vmtx  of  the  Con- 
ference can  not  well  be  e.xprcssed  in  more  precise  and  apt  terms 
than  those  used  by  the  military  delegate  in  his  report  of  the  proceed- 
nii;s  of  the  second  commission.  The  following  paragraphs,  therefore, 
are  taken  from  such  report : 


136  THE  HAGUE  CONFERENCE  OF  1907 

It  has  been  seen  that  both  the  committee  and  the  Conference 
finally  rejected  a  proposition  which  had  been  prepared  with  a 
view  to  minimize  the  effects  of  war  upon  neutral  commerce  and 
in  conformity  with  the  tendencies  of  modern  industry  and  trade, 
which  demaiid  for  their  development  and  maintenance  the  widest 
markets  and  which  are  in  the  highest  degree  sensitive  to  the  dis- 
turbing effects  of  war.  .    •      . 

The  German  proposition,  by  protectmg  stock  of  goods  m  the 
hands  of  neutral  agents  in  belligerent  territory  from  seizure  or 
requisition,  was  calculated  to  give  to  neutral  undertakings  the 
broadest  immunity  from  belligerent  interference  by  restricting  the 
burdens  and  operations  of  war  to  the  belligerent  States  and  their 
subjects.  But  the  proposition  so  conceived  and  submitted  was  dis- 
missed with  the  following  expression  of  desire,  which  may  be  ac- 
cepted as  showing  the  importance  which  is  attached  to  the  de- 
velopment of  modern  industry  and  commerce  by  a  majority  of  the 
Governments  of  the  civilized  world: 

The  Conference  expresses  the  hope— 

I.  That  in  case  of  war  the  competent  authorities,  civil  and 
military,  should  make  it  their  special  duty  to  assure  and  protect 
the  commercial  and  industrial  relations  between  the  belligerent 
Powers  and  neutral  States. 

II.  That  the  high  (signatory)  Powers  should  seek  to  establish 
in  agreements  with  each  other  uniform  contractural  undertakings 
determining,  in  respect  to  military  burdens,  the  relations  of  each 
State  in  respect  to  the  strangers  established  in  its  territory. 

The  fourth  vru  of  the  Conference  is  as  follows: 

4.  The  Conference  utters  the  wish  that  the  elaboration  of  regu- 
lations relative  to  laws  and  customs  of  maritime  warfare  may 
figure  in  the  program  of  the  next  Conference,  and  that  in  any 
case  the  Powers  apply,  as  far  as  possible,  to  maritime  warfare  the 
principles  of  the  Convention  relative  to  the  laws  and  customs  of 
war  on  land. 

Its  adoption  was  due  to  the  inability  of  the  Conference  to  codify 
the  law  of  maritime  warfare  as  the  Conference  of  1899  had  codified 
the  laws  and  customs  of  war  on  land.  The  reasons  for  this  failure 
need  not  be  set  forth,  because  the  "desire"  of  the  Conference  is  that 
the  regulation  of  the  laws  and  customs  of  maritime  warfare  be  in- 
cluded in  the  program  of  the  Third  Conference.  The  concluding 
portion  of  the  desire  is  in  the  nature  of  a  recommendation,  namely, 
that  the  Powers  apply  as  far  as  possible  to  naval  warfare  the  prin- 


SEPORT  OF  THE  AMERICAN   DELEGATION 


137 


ciples  of  the  laws  and  customs  of  warfare  on  land.  It  is  likewise  un- 
necessary to  discuss  this  phrase,  as  it  is  not  binding  upon  any  Power 
so  to  do,  and  the  measure  of  the  application  naturally  depends  upon 
the  judgment  of  each  of  the  Powers. 

The  final  desire  of  the  Conference  is  in  the  nature  of  a  recommen- 
dation and  is  as  follows : 

Lastly,  the  Conference  recommends  to  the  Powers  the  holding  of 
a  Third  Peace  Conference  which  might  take  place  within  a  period 
similar  to  that  which  has  elapsed  since  the  preceding  Conference 
on  a  date  to  be  set  by  joint  agreement  among  the  Powers,  and  it 
draws  their  attention  to  the  necessity  of  preparing  the  labors  of 
that  Third  Conference  sufficiently  in  advance  to  have  its  delibera- 
tions follow  their  course  with  the  requisite  authority  and  speed. 

In  order  to  achieve  that  object,  the  Conference  thinks  it  would 
be  very  desirable  that  a  preparatory  committee  be  charged  by  the 
Governments  about  two  years  before  the  probable  date  of  the 
meeting  with  the  duty  of  collecting  the  various  propositions  to  be 
brought  before  the  Conference,  to  seek  out  the  matters  susceptible 
of  an  early  international  settlement,  and  to  prepare  a  program 
which  the  Governments  should  determine  upon  early  enough  to 
permit  of  its  being  thoroughly  examined  in  each  country.  The 
committee  should  further  be  charged  with  the  duty  of  proposing 
a  mode  of  organization  and  procedure  for  the  conference  itself. 

The  desire  of  the  friends  of  progress  is  to  have  the  Hague  Confer- 
ence a  permanent  institution,  which  meets  at  certain  regular  periods, 
automatically  if  possible,  and  beyond  the  control  of  any  one  Power. 
The  American  delegation  was  instructed  to  secure,  if  possible,  this 
result,  and  through  the  efforts  of  the  American  del^ation  this  result 
was  reached  in  large  measure.  It  is  difficult,  if  not  impossible,  for 
one  legislative  body  to  bind  its  successor.  It  is  doubly  difficult  for  a 
qiiasi-legislative  or  diplomatic  assembly  to  bind  a  succeeding  assem- 
bly. It  was  therefore  thought  advisable  not  to  attempt  to  fix  the 
date  absolutely,  but  to  recommend  that  a  Third  Conference  meet 
within  or  at  about  the  period  which  has  elapsed  between  the  calling 
of  the  First  and  the  assembling  of  the  Second  Conference,  leaving  the 
exact  date  to  be  fixed  by  the  Powers. 

Experience  has  showm  that  much  time  is  lost  not  merely  in  organ- 
izing a  Conference,  but  in  preparing  and  presenting  the  various  projects. 
It  is  desirable  that  the  projects  be  prepared  in  advance  so  that  they 
may  be  presented,  printed,  and  distributed  at  the  opening  of  the  ses- 


138 


THE  HAGUE  CONFERENCE  OF  1907 


sion.  This  the  Conference  recommended.  But  to  prepare  the  various 
propositions  to  be  submitted  to  the  Conference  it  is  necessary  to  deter- 
mine in  advance,  at  least  tentatively,  the  program.  The  Conference 
therefore  recommended  that  some  two  years  before  the  probable  date 
of  the  Conference  a  preparatory  committee  be  charged  by  the  various 
Governments  to  collect  propositions,  to  ascertain  the  matters  susceptible 
of  international  regulation,  and  to  prepare  the  program  sufficiently 
in  advance  of  the  meeting  that  it  may  be  seriously  and  maturely 
considered  by  each  Government  intending  to  take  part. 

The  wisdom  of  these  provisions  is  so  apparent  that  any  justifica- 
tion of  them  seems  unnecessary.  The  last  clause,  however,  can  not 
be  passed  in  silence,  as  its  importance  is  fundamental;  for,  in  simple 
terms,  it  means  that  the  Conference  is  not  to  be  organized  or  the 
method  of  procedure  determined  by  any  single  Power.  In  other  words, 
the  Conference,  it  would  seem,  is  to  be  given  over  to  itself.  The  com- 
mittee of  the  Powers  is  charged  with  the  duty  of  proposing  a  mode  of 
organization  and  procedure  for  the  Conference,  and  it  can  not  be 
doubted  that  the  committee,  consisting  of  leading  and  representative 
Powers,  will  propose  a  mode  of  organization  and  procedure  which  will 
permit  the  Conference  to  organize  itself  and  conduct  its  proceedings 
without  requiring  the  guidance  and  direction  of  any  particular  Power. 
Its  officers  may  be  elected  by  the  Conference,  rather  than  appointeri, 
and  if  so  elected  or  selected  by  the  Conference  it  is  safe  to  assume 
that  they  will  be  not  only  in  harmony  with  its  purposes,  but  in  full 
sympathy  with  the  spirit  of  the  Conference.  In  any  case  the  recom- 
mendation is  of  the  greatest  importance,  because  it  shows  a  unanimous 
desire  on  the  part  of  the  Powers  present  for  the  calling  of  a  Third  Con- 
ference, and  it  indicates  in  no  uncertain  terms  that  the  Conference  in 
becoming  in  the  largest  sense  international  is  not  to  be  under  the  con- 
trol or  predominance  of  any  one  nation. 

Such  is,  in  brief,  the  work  of  the  Second  International  Peace  Con- 
ference. It  is  believed  that  the  various  measures  adopted  by  it  and 
recommended  to  the  favorable  consideration  of  the  Powers  will  meet 
with  general  approval.  It  is  hoped  that  the  reasons  set  forth,  briefly, 
in  the  present  report  may  justify  the  delegates  in  signing  the  various 
measures  and  that  their  acticm  as  a  whole  may  meet  with  the  approval 
of  the  Secretary  of  State. 

We  have  the  honor  to  be,  sir,  your  obedient  servants. 

Joseph  H.  Choate,  Chairitinn. 
Chandler  Hale,  Secretary. 


